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Exchange of Notes constituting an Agreement between Canada and the United States of America concerning the Test and Evaluation of U. S. Defence Systems in Canada [1983] CATSer 5 (10 February 1983)

E100976 - CTS 1983 No. 6

EXCHANGE OF NOTES CONSTITUTING AN AGREEMENT BETWEEN CANADA AND THE UNITED STATES OF AMERICA CONCERNING THE TEST AND EVALUATION OF U.S. DEFENCE SYSTEMS IN CANADA

I

The Ambassador of Canada to the Acting Secretary of State of the United States of America

Washington, February 10, 1983

Note No. 64

The Honourable Kenneth W. Dam,
Acting Secretary of State,
Department of State,
Washington

Sir,

I have the honour to refer to recent discussions between officials of the Government of Canada and of the Government of the United States of America concerning the test and evaluation of US defence systems in Canada.

As a result of these discussions I have the honour to propose an agreement in the following terms:

1. The undertakings pursuant to this Agreement shall be known as "The Canada/US (CANUS) Test and Evaluation Program". An undertaking under this Program shall be known as a Test and Evaluation (T&E) project.

2. The T&E Program conducted under the provisions of this Agreement shall be governed by the terms of the Agreement between the Parties to the North Atlantic Treaty Regarding the Status of Their Forces (NATO SOFA) dated June 19, 1951.

3. This Agreement is applicable to T&E projects developed under the auspices of this Program and which are mutually agreed upon by the Minister of National Defence on behalf of Canada and by the Secretary of Defense on behalf of the United States of America, or their designated representatives. Canada may refuse any T&E projects proposed under this Agreement.

4. A Memorandum of Understanding dealing with general implementing arrangements for this Agreement, including program management and administration, shall be negotiated and concluded by the designated representatives of the Canadian Department of National Defence (DND) and the United States Department of Defense (DOD). A Project Arrangement providing implementing arrangements for each CANUS T&E project shall be negotiated and concluded by DND and DOD.

5. Nothing in this Agreement shall derogate from the application of Canadian law in Canada. If, in unusual circumstances, the application of Canadian law may lead to delay or difficulty in the conduct of a T&E project, DOD may request the assistance of Canadian authorities in seeking appropriate alleviation.

6. The Canadian Forces shall exercise command and control over Canadian facilities used by the DOD for T&E, and Canadian safety regulations and orders shall apply.

7. Specific T&E projects shall be confined to Canadian Forces bases, training areas and agreed air space. The tests and evaluations will include projects related to weapons, weapons systems, stores and equipment, and electronic warfare systems and may include associated training and tactics development activities.

8. In no case shall nuclear, biological or chemical warfare materials be brought into Canada under this Agreement. Cruise missiles shall be unarmed.

9. Except as provided in paragraph 10, the United States shall bear all the costs and expenditures of the T&E Program. Project Arrangements made under the terms and conditions of this Agreement shall not be finalized until such time as it is confirmed that funds have been authorized, appropriated and allocated for this purpose. Subject to Article VIII of NATO SOFA, the United States shall reimburse Canada for all costs incurred by Canada on behalf of the United States as a direct result of the T&E Program. DND charges for support shall not include any amounts for military pay nor include normal operating and maintenance expenses that would be incurred whether or not the DOD was using the facility.

10. Canada shall have the right to participate in all CANUS T&E projects. The scope, character and financial obligations, if any, of Canadian participation shall be determined for each project through consultation and shall be specified in the associated Project Arrangements.

11. While security for a T&E project will be the responsibility of the Canadian Forces (CF), in special cases such as an unscheduled termination of a test flight or an accident in or adjacent to a CF Base, the US forces may be requested to assume this responsibility on a case by case basis if circumstances so dictate. When appropriate, the services of the Canadian Forces to meet a special security case will be provided on a cost recoverable basis.

12. The use of a specified test area shall be dependent upon the availability of facilities and local resources. Every effort, however, shall be made by DND to accommodate a T&E project in CF plans and to obtain clearances for the use of air space associated with the test plan.

13. The use of Canadian civil airspace shall be approved and controlled by the Minister of Transport. Flight corridors in Canada to be used for the testing of cruise missiles shall be selected to ensure minimum disruption to civil aircraft operations and minimum disturbance to persons on the ground.

14. DND may review the types of T&E data that are expected to be acquired by DOD during the conduct of a particular project to determine their relevance to DND programs. DND may request that the data acquired during the conduct of the project be provided by DOD. Data provided by DOD shall be at no cost to Canada except as provided in paragraph 10 above. All proprietary information and data exchanged under this Program shall be in accordance with the NATO Agreement on the Communication of Technical Information for Defence Purposes signed in Brussels on October 19, 1970. All T&E Project Arrangements shall contain the appropriate Intellectual Property provisions.

15. Any classified information and material exchanged under this Program will be safeguarded in accordance with existing arrangements between Canada and the United States in relation to the protection of classified information.

16. All tests and evaluations involving US classified information and/or material will be carried out under US Government security control unless the specific Project Arrangement specifies otherwise. However, the Canadian Forces shall continue to exercise command and control over Canadian facilities used by the DOD for T&E as provided for in paragraph 6 of this Agreement.

17. The release of information to the public concerning any project under this Agreement shall require prior consultation and coordination between appropriate US and Canadian authorities.

18. The DOD shall comply with Canadian laws, regulations and orders applicable to the Canadian Forces in respect of the protection of the environment. DOD shall assume financial responsibility for any environmental studies required under Canadian law, regulations and orders.

19. Claims arising from T&E projects shall be settled in accordance with Article VIII of NATO SOFA. Activities conducted under this Agreement are deemed to be in connection with the operation of the North Atlantic Treaty for the purposes of applying Article VIII, Paragraph 1.

20. DND will provide, on a reimbursable basis, all goods, services and facilities required from Canadian sources during the period of this Agreement.

21. Removal and disposal of United States Government property shall be governed by the Agreement between the United States of America and Canada regarding Disposal of United States Excess Property in Canada effected by the Exchange of Notes signed in Ottawa, August 28 and September 1, 1961. No activities undertaken pursuant to this T&E Agreement shall be deemed "joint exercises for Canadian and United States forces" as that term is used in paragraph 6 of the Note dated August 28, 1961.

22. To the extent that existing laws, regulations and agreements, including NATO SOFA, permit, the import into Canada and purchase in Canada of equipment and goods required for T&E projects shall not be subject to customs duties, federal sales taxes and excise taxes.

23. This Agreement shall remain in force for a period of five years and will be renewed automatically for a further term of five years, subject to the following provisions:

(a) This Agreement may be terminated in its entirety upon twelve months notice in writing by either Government, or in whole or in part, by either Government, without advance notice, should either Government consider it necessary by reason of an extreme emergency such as war, invasion, insurrection or riot, real or apprehended.

b) In the event of the termination of this Agreement the Governments of Canada and the United States shall negotiate the settlement of outstanding financial issues.

c) Either Government shall reserve the right to cancel, suspend, postpone or terminate any specific test and evaluation project, if in its opinion, any unforeseen imperative circumstances should so warrant. In such event the financial obligations of the parties, including reimbursement of costs incurred by a party as a result of cancellation, suspension, postponement or termination by the other party, shall be the subject of separate negotiation.

d) This Agreement may be amended by mutual consent of the parties.

If the foregoing is acceptable to the Government of the United States, I have the honour to propose that this Note, which is authentic in English and French, and your Note in reply to that effect, shall constitute an Agreement between our two Governments which shall enter into force upon the date of your reply.

Accept, sir, the assurances of my highest consideration.

Allan Gotlieb

Ambassador

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The Acting Secretary of State of the United States of America to the Ambassador of Canada

Washington, February 10, 1983

The Honourable Allan Gotlieb,
Ambassador of Canada,
Washington,

Excellency:

I have the honor to acknowledge receipt of your Note No. 64 dated February 10, 1983, concerning the test and evaluation of United States defense systems in Canada.

I am pleased to inform you that the Government of the United States accepts the proposals contained in your Note and that your Note and this Note in reply shall constitute an Agreement regarding this matter which shall enter into force on the date of this Note.

Accept, Excellency, the renewed assurances of my highest consideration.

Kenneth W. Dam

Acting Secretary of State