Home | Databases | WorldLII | Search | Feedback Canadian Treaty Series

Exchange of Notes between the Government of Canada and the Government of the United States of America constituting an Agreement amending the Agreement concerning the Commercial Development of an Area of the United States Naval Facility, Argentia, Newfoundland [1985] CATSer 12 (22 May 1985)

E103797 - CTS 1985 No. 25

EXCHANGE OF NOTES BETWEEN THE GOVERNMENT OF CANADA AND THE GOVERNMENT OF THE UNITED STATES OF AMERICA CONSTITUTING AN AGREEMENT AMENDING THE AGREEMENT CONCERNING THE COMMERCIAL DEVELOPMENT OF AN AREA OF THE UNITED STATES NAVAL FACILITY, ARGENTIA, NEWFOUNDLAND

I

The Ambassador of the United States of America to the Minister of Justice of Canada

OTTAWA, May 22, 1985

Note No. 159

I have the honor to refer to recent discussions between officials of our two governments concerning commercial development of an area of the United States Naval Facility, Argentia, Newfoundland (the “Facility”). The Facility is leased by the United States Government under the Leased Naval and Air Bases Agreement of March 27, 1941, as amended. By an exchange of Notes on June 6, 1978, the United States subleased to the Government of Canada portions of the Northside Properties for commercial and other purposes. In recent discussions Canadian officials have taken the position that the terms and conditions of the sublease have hindered, in some respects, the economic development of the subleased property.

The United States takes this opportunity to reaffirm its right and ability to reactivate the Northside Airfield and essential adjacent facilities for United States military operations. In the event of airfield reactivation, any increase in United States military population could be absorbed on the Southside where all United States activity is now consolidated. The United States agrees to relinquish its right to immediate reentry of the “Management Area” described in Annex A and partially depicted in Annex C. United States reentry to the Management Area would be based solely on agreement between the Government of the United States and the Government of Canada. The United States in addition agrees to sublease to Canada the “Airfield Area” as described in Annex A and depicted in Annex C, but retains its right of unilateral and immediate reentry to that Airfield area. Furthermore, in connection with any decisions with regard to reentry by the United States into any part of the subleased areas (as described in Annex A), it is understood that the Government of Canada would have the option, if United States reentry would disrupt a critical wartime industry, of offering to the United States, in lieu of reentry, access to other military or civil airfields or facilities which the United States determines would fulfill its military requirements.

The United States Government proposes that the Government of Canada Sublease, agreed in the exchange of Notes on June 6, 1978, be revised and replaced by this Note and its Annexes. The revised sublease would be in effect for a term commencing on October 1, 1985 and continuing up to and including the 25th day of March 2040, subject, however, to the terms and conditions set forth in Annex B.

I have further the honor to propose that, if the arrangement outlined in this Note with its attached Annexes A, B, and C is acceptable to your Government, this Note, together with its Annexes and your reply to that effect, shall constitute an Agreement between our two Governments made as of the date of your reply.

The Embassy of the United States of America takes this occasion to renew to the Department of External Affairs the assurances of its highest consideration.

Paul H. Robinson

Ambassador

II

The Minister of Justice of Canada to the Ambassador of the United States of America

May 22, 1985

SFP-0828

His Excellency Mr. Paul H. Robinson,
Ambassador of the United States of America,
Ottawa

Sir,

I have the honour to refer to your Note No. 159 of May 22, 1985, together with the Annexes A, B and C attached thereto, which sets forth terms and conditions for the sublease of an area of the United States Naval Facility, Argentia, Newfoundland for a term commencing the 1st day of October, 1985 and continuing up to and including the 25th day of March, 2040, subject, however, to the said terms and conditions.

I have the honour to state that the Government of Canada accepts the proposals set out in your Note, and agrees that your Note, together with its Annexes A, B and C, and this reply thereto, which is authentic in English and French, shall constitute an Agreement between our two Governments regarding this matter, made as of the date of this reply.

Accept, Sir, the assurances of my highest consideration.

John C. Crosbie

Minister of Justice

ANNEX A

1. The Airfield Area is described as follows:

Beginning at the intersection of the shore line (at approximately mean tide) on the southwest coast of the Argentia Peninsula with latitude 47 degrees, 17 minutes, 49.678 seconds North and longitude 53 degrees, 59 minutes, 46.399 seconds West; thence northerly following the sinuosities of the shore line of Placentia Bay, around the entire Argentia Peninsula and the shore of Argentia Harbor to the intersection on the northeast coast of the Argentia Peninsula with latitude 47 degrees, 18 minutes, 56.723 seconds North and longitude 53 degrees, 58 minutes 31.425 seconds West; thence southwest, parallel to the N/E-S/W Runway taxiway, the following courses and distances: South 43 degrees, 10 minutes West, 2530 feet, more or less, to a point; thence South 01 degree, 05 minutes West, 160 feet, more or less, to a curve to the left; thence along the curve, 180 feet, more or less, to a point; thence South 47 degrees, 30 minutes East, 128 feet, more or less to a point; thence along the south side of North Barracks Avenue, South 43 degrees, 00 minutes West 1720 feet, more or less, to a curve to the left; thence along the curve, 330 feet, more or less, to the intersection with Tower Drive; thence along Tower Drive, South 21 degrees, 30 minutes East, 370 feet, more or less, to the intersection with Placentia Pike; thence along the south side of Placentia Pike, South 45 degrees, 55 minutes West, 1750 feet, more or less, to a curve to the left; thence along the curve, 725 feet, more or less, to a point; thence South 00 degrees, 35 minutes West, 695 feet, more or less, to a point; thence South 05 degrees, 00 minutes West, 155 feet, more or less, to a point; thence departing Placentia Pike following the south side of an unnamed road, North 88 degrees, 45 minutes West, 990 feet, more or less to the point of beginning. The fuel storage area, described immediately below, is included in the Airfield Area.

Beginning at the intersection of the shore line (at approximately mean tide) on the southeast coast of the Argentia Peninsula with latitude 47 degrees, 17 minutes, 40.037 seconds North and longitude 53 degrees, 59 minutes, 10.603 seconds West, thence North 50 degrees, 25 minutes West, 685 feet, more or less, to the True Point of beginning; thence North 50 degrees, 25 minutes West, 265 feet, more or less to a curve to the right; thence along the curve 1000 feet, more or less, to a point; thence North 24 degrees, 30 minutes East, 390 feet, more or less, to a point; thence North 83 degrees, 30 minutes East, 880 feet, more or less, to a curve to the right; thence along the curve, 1040 feet, more or less, to a point; thence North 63 degrees, 15 minutes West, 375 feet, more or less, to a point; thence South 29 degrees, 35 minutes West, 760 feet, more or less, to the True Point of Beginning.

2. The Management Area is described as follows:

ARGENTINA

Beginning at the intersection of the shore line (at approximately mean tide) on the southwest coast of the Argentia Peninsula with latitude 47 degrees, 17 minutes, 22.732 seconds North and longitude 53 degrees, 59 minutes, 44.796 seconds West; thence northerly following the sinuosities of the shore line of Placentia Bay to latitude 47 degrees, 17 minutes, 49.678 seconds North and longitude 53 degrees, 59 minutes, 46.399 seconds West; thence easterly and northerly the following courses and distances: South 88 degrees, 45 minutes East, 990 feet, more or less along the south side of an unnamed road to the intersection with the east side of Placentia Pike; thence North 05 degrees, 00 minutes East, 155 feet, more or less, to a point; thence North 00 degrees, 35 minutes East, 695 feet, more or less, to a curve to the right; thence along the curve, 725 feet, more or less, to a point; thence North 45 degrees, 55 minutes East, 1750 feet, more or less, to the intersection with Tower Drive; thence along the east side of Tower Drive North 21 degrees, 30 minutes West, 370 feet, more or less, to a curve to the right; thence along the curve 330 feet, more or less, to the intersection with the south side of North Barracks Avenue; thence along North Barracks Avenue, North 43 degrees, 00 minutes East, 1720 feet, more or less, to a point; thence North 47 degrees, 30 minutes West, 128 feet, more or less, to a curve to the right; thence along the curve, 180 feet, more or less, to a point; thence North 01 degrees, 05 minutes East, 160 feet, more or less, to a point; thence North 43 degrees, 10 minutes East, 2530 feet, more or less, to the intersection with the northeast coast of Argentia Peninsula at latitude 47 degrees, 18 minutes, 56.723 seconds North and longitude 53 degrees, 58 minutes, 31.425 seconds West; thence southerly around the sinuosities of the Argentia Peninsula to the intersection on the southeast coast of the Argentia Peninsula with latitude 47 degrees, 17 minutes, 22.732 seconds North and longitude 53 degrees, 59 minutes, 35.194 seconds West; thence due West 661.904 feet, more or less, to the point of beginning, excepting the fuel storage area, as described above. There is reserved from the foregoing all those areas, contained within a right-of-way of the Newfoundland Railway; its wharf, property and station at Argentia, as may be mutually determined to be essential to the operation of the said railway. All water area within Argentia Harbor lying Southwest of a line drawn between Virgin Point and Broad Cove Point having as its termini 47 degrees, 18 minutes, 53.5 seconds North latitude, 53 degrees, 58 minutes, 17.5 seconds West longitude and 47 degrees, 18 minutes, 17.5 seconds North latitude, 53 degrees, 57 minutes, 15.5 seconds West longitude, which excepted water area shall for the purposes of this Agreement constitute a portion of the Management Area.

ISAAC POINT AND LAND EAST OF ISAAC HEAD, PLACENTIA BAY

Being the entire peninsula known as Isaac Head and described as follows: beginning at a point on the South shoreline of Ship Harbor, said point being North 53 degrees, 54 minutes, 21.05 seconds West 15210.88 feet from point A-1 as described in the piece or parcel of land above described under the heading Argentia and Broad Cove, Placentia Bay, said point being the principal point of beginning; thence South 20 degrees, 19 minutes, 03.61 seconds West 367 feet more or less to the North shore line of Placentia Sound; thence along the said North shore line of Placentia Sound southerly and westerly 8500 feet more or less to Isaac Point; thence along the South shore line of Ship Harbor northerly and easterly 7500 feet more or less to the principal point of beginning. The said peninsula contains in all approximately 0.4 square miles or 256 acres; all bearings are true.

COOPER HEAD PLACENTIA BAY

All that portion of Cooper Head fronting on the South side of Ship Harbor, Placentia Bay, Newfoundland, North of an East and West line passing 100 feet South of a point defined by latitude 47 degrees, 20 minutes, 30 seconds North, longitude 53 degrees, 54 minutes, 34 seconds West and West of a North and South line which passes 100 feet east of the aforesaid defined point. The area is approximately 0.7 of an acre.

SHIP HARBOR PROPERTY

All that piece or parcel of land containing Ship Harbor Point and vicinity and described as follows: Beginning at a point as marked by a bronze tablet cemented in solid rock on the first point North of Seal Cove Pond just over high water mark said point being marked Ship No. 6 as related to Fort McAndrew triangulation system said point being the principal point of beginning; thence North 39 degrees, 57 minutes, 40 seconds East, 3363.61 feet to an iron pin driven into the ground; thence North 39 degrees, 42 minutes, 49 seconds East, 2984.80 feet to a bronze marker set in a large boulder on the hillside northwest of Deep Pond; thence North 61 degrees, 41 minutes, 04 seconds East 2546.27 feet to a bronze marker cemented into a large boulder on the hill on the left bank of the inlet to Deep Pond; thence South 12 degrees, 55 minutes, 04 seconds West 1787.56 feet to a bronze marker set on top of the hill on the northeast side of Deep Pond; thence South 32 degrees, 40 minutes, 10 seconds West 5121.77 feet; thence South 15 degrees, 51 minutes, 58 seconds West 1487.81 feet to an iron pipe; thence due South for a distance of 462 feet more or less to the northwest corner of the property of Patrick Murphy; thence southerly and easterly along the West line of the said property of Patrick Murphy South 43 degrees, 30 minutes East 139 feet more or less to the southwest corner of the property of Patrick Murphy; thence along the boundary line between the property of Mary Ann Murphy and the property of Patrick Murphy the following bearings and distances: North 44 degrees, 50 minutes East 77 feet more or less; thence North 52 degrees, 40 minutes East 141 feet more or less; thence South 54 degrees, 50 minutes East 208 feet more or less to the shore line of Conway’s Cove; thence following the sinuosities of the shore line southerly and westerly 227 feet more or less to a point due East from the northeast corner of the property of James Griffen; thence due West 36 feet more or less to the northeast corner of the property of the said James Griffen; thence along the north boundary line of the said property of the said James Griffen South 81 degrees, 20 minutes West 52 feet more or less; thence north 18 degrees, 00 minutes West 19 feet more or less; thence North 83 degrees, 10 minutes West 181 feet more or less; thence North 44 degrees, 30 minutes West 173 feet more or less; thence North 56 degrees, 30 minutes West 260 feet more or less to the northwest corner of the property of the said James Griffen; thence due West 250 feet; thence due South 2029 feet more or less; thence due East 540 feet more or less to the shore line at Ship Harbor, thence following the sinuosities of the shore line to the principal point of beginning via Sparrow Point, Ship Harbor Point and Big Seal Cove the said piece or parcel of land containing in all approximately 903.20 acres; all bearings are True.

BLACK POINT, CAPE SHORE, PLACENTIA BAY

Parcel No. 1: Being an area of land at Black Point in Placentia Bay and described as follows: Beginning at an iron pipe marked No. 2 on the West side of the St. Bride’s - Placentia Highroad approximately 0.68 miles northerly by said road from the bridge over Little Barachoix River said point being at coordinates South 23000 West 6469 of the survey control system at Fort McAndrew and being the principal point of beginning; thence due West 408 feet to a point on the property line of John Foley, Little Barachoix; thence along the easterly and northerly boundaries of the property of the said John Foley on the following lines: North 04 degrees, 04 minutes East 60 feet; North 58 degrees, 20 minutes West 96 feet; South 28 degrees, 10 minute West 58 feet; South 68 degrees, 00 minutes West 81 feet to the top of the bank; thence continuing South 68 degrees, 00 minutes West approximately 50 feet to the high water mark on the shore line of Placentia Bay; thence northerly following the sinuosities of the said shore line approximately 2030 feet to a point; thence due East approximately 375 feet to a point on the West edge of the St. Bride’s-Placentia Highroad, said point being marked by an iron pipe No. 1 being North 32 degrees, 44 minutes, 28.47 seconds West 364.93 feet from triangulation point “NED” of Fort McAndrew Survey Control System; thence southerly along the West edge of the right of way of said road approximately 1770 feet to the principal point of beginning the said piece or parcel of land containing, in all, approximately 17.0 acres; all bearings are True.

Parcel No. 2: Being an area of land at Black Point adjacent to Parcel No. 1 described above and abutted and bounded as follows: Beginning at the iron pipe marked No. 2 and being the principal point of beginning described in the immediately preceding parcel No. 1; thence due East 33 feet to an iron pipe on the easterly edge of the St. Bride’s-Placentia Highroad, said point being the principal point of beginning for this Parcel; thence northerly along the easterly edge of the right of way of said highroad approximately 270 feet to an iron pipe; thence North 45 degrees, 00 minutes East 316.66 feet; thence South 45 degrees, 00 minutes East 290.53 feet; thence South 45 degrees, 00 minutes West 390 feet; thence due West 100 feet to the principal point of beginning the said piece or parcel of land containing, in all, approximately 2.6 acres; all bearing are True.

FOX ISLAND

All of Fox Island, located in Placentia Bay, Newfoundland, north of Argentia Peninsula, near Ship Harbor, at latitude 47 degrees, 21 minutes, 25 seconds North, and longitude 53 degrees, 59 minutes, 28 seconds West, containing 58.50 acres more or less.

ANNEX B

Hereinafter, unless the context otherwise requires, “Canada” means the Government of Canada, “United States” means the Government of the United States of America, and the “Management Authority” means that authority designated by the Government of Canada to manage, in whole or in part, the area sublet by this Agreement.

1. The Unites States agrees to and does hereby sublease to Canada that part of the area of the Facility, described in Annex A and partially depicted in Annex C as the “Management Area” for the purpose of this Agreement, subject to the condition that the United States may resume full and exclusive occupancy of the whole or such part thereof as it may require, at such time as may be mutually agreed upon by the Government of the United States and the Government of Canada. Upon such reentry, and for so long as such re-occupancy shall continue during the term of the lease (hereinafter called “the Headlease”) under the Leased Naval and Air Bases Agreement of March 27, 1941, as amended (hereinafter called the “1941 Agreement”), the United States shall, as necessary, have the right to control access to and usage of the airfield and surrounding airspaces and shall have all rights of ownership, including rights of use, alteration and removal (subject, however, to the rights of removal provided for in paragraph 7), in any and all permanent improvements located within the Management Area or such part thereof as it shall have reoccupied hereunder. Such reentry shall terminate the Canadian sublease of the reoccupied property.

2. The United States agrees to and does hereby sublease to Canada that part of the area of the Facility, described in Annex A and depicted in Annex C as the “Airfield Area” for the purposes of this Agreement, subject to the condition that the United States may unilaterally and immediately resume full and exclusive occupancy of the whole or such part thereof as it may require. Upon such reentry, and for so long as such reoccupancy shall continue during the term of the Headlease under the 1941 Agreement, the Unites States shall control access to and usage of the airfield and surrounding airspaces and shall have all rights of ownership, including rights of use, alteration and removal (subject, however, to the rights of removal provided for in paragraph 7), in any and all permanent improvements located within the Airfield Area or such part thereof as it shall have reoccupied hereunder. Such reentry shall terminate the Canadian sublease of the reoccupied property.

3. The United States shall have the right, upon reasonable notice to the Management Authority, to the use of wharves in the Management Area, free of charge, for the loading and unloading, by United States Navy personnel or employees, of ships in support of the Facility, together with necessary rights of ingress and egress over the Management Area for such purposes.

4. In the event the United States shall reenter and reoccupy all or any part of the Management or Airfield Areas pursuant to paragraphs 1 and 2 of this Annex, and for so long as such reoccupancy continues, the provisions of paragraph 3 of this Annex shall not apply to any wharves reoccupied but the provisions of the 1941 Agreement shall apply thereto for purposes of allowing the United States the unimpeded use of such wharves.

5. Canada will from time to time designate to the United States in writing a Management Authority responsible in full or in part for the administration of the Agreement and Canada’s sublease.

6. Canada has the right to execute additional subleases of both areas which are the subject of this agreement. Canada will take all necessary measures to ensure that any additional sublessee (it is understood that the Province of Newfoundland shall be considered as an additional sublessee in the event that Canada transfers the administration and control of part of the Management or Airfield Areas to Newfoundland) of the whole or any part of the Management or Airfield Areas does not interfere with the activities, including communications, of the United States at the Facility, or with the security of those activities or with the rights of the United States under this agreement. To this limited end, the Management authority will forward all applications for additional subleases to the Commanding Officer of the Facility who will provide findings and recommendations to the Management Authority as to the granting of each application. A recommendation that a sublease should not be granted on the grounds of security or interference with United States activities at the Facility shall be binding upon Canada. Any additional sublease granted will specify the use to which the subleased property may be put. Any change of use without the written consent of the Management Authority and the Commanding Officer of the Facility shall not be permitted. Any additional sublease granted shall be terminated by the Management Authority in the event that any activity of the additional sublessee, its agents, employees, or contractors shall be determined by the Commanding Officer of the Facility to constitute an interference with Facility activities. Such determination shall be binding upon the Management Authority. The Management Authority will be notified in writing by the Commanding Officer of the Facility concerning his determination relative to such interference and his request for termination of the additional sublease. Within a reasonable time after receipt of such notice, the Management Authority shall effect such terminations.

7. The Management Authority may, at its own expense, during the term of the sublease erect or construct or authorize erection or the construction of buildings and other improvements within the Management and Airfield Areas. Any buildings so erected or constructed or so authorized since June 6, 1978 may be removed at its own expense by the Management Authority at any time; provided, that any such removal after termination of the sublease from any portion of the Management and Airfield Areas reoccupied by the United States under paragraphs 1 or 2 of this Annex shall be subject to the prior consent of the Commanding Officer of the Facility and any conditions thereof. New construction or modification of existing structures shall be subject to the approval of the Commanding Officer and shall be carried out in such a way as not to preclude the use of the airfield runway in the event of a determination to reenter under paragraphs 1 or 2 of this Annex. Nor shall any structure or building be erected which would be an obstruction to air navigation at a military airfield in violation of the standards set forth in Canadian Department of Transport publication TP-312 (Aerodrome Standards, Physical characteristics and Zoning Requirements), Chapter 4, to the extent not inconsistent with subpart C - “Obstruction Standards,” of part 77 of the Regulations of the United States Federal Aviation Administration (14 Code of Federal Regulations 77.21 to 77.29), as the same shall be amended.

8. This Agreement does not create or recognize any licenses, easements or rights of way outside the Management and Airfield Areas which are not expressly stated in this Agreement. Licenses, easements, or other encumbrances outside the Management and Airfield Areas may be created by local agreement between the Commanding Officer of the Facility and the Management Authority. Local agreements respecting utilities, the electrical system, fire protection and other services and matters related or incidental thereto may be entered into between the Commanding Officer of the Facility and the Management Authority. All such licenses, easements, rights of way or other local agreements or encumbrances shall be subject to such termination or modification as may be required incidental to the exercise by the United States of its reentry rights under paragraphs 1 or 2 of this Annex.

9. The Management Authority will maintain the security fence along the ferry access road in a reasonable condition. The Management Authority will be responsible for road maintenance in the Airfield Area and that portion of the Management Area identified as “Argentia” in Annex A. These responsibilities shall be subject to such termination or modification as may be required incidental to the exercise by the United States of its reentry rights under paragraphs 1 or 2 of this Annex. The Management Authority will take such other measures as the Commanding Officer of the Facility determines are necessary to prevent unauthorized access from the Management or Airfield Areas to that part of the Facility not within the Management or Airfield Areas.

10. Canada will accept the Management and Airfield Areas as is; will waive any claim or clause of action that might otherwise exist against the United States, its agents, servants or employees by reason of any patent or latent conditions of the Management and Airfield Areas, any part thereof or equipment or object thereon; and will indemnify and hold harmless the United States, its agents, servants or employees or contractors with respect to any claims or liability that may arise out of the use of the Management and Airfield Areas by Canada, her agents, employees, sublessees, contractors or others, provided that the responsibility of Canada with respect to any claims or liability arising out of acts of negligence occurring subsequent to the date of this sublease and attributable to the United States, members of the force or civilian component, acting within the course of their official duties, shall be determined in accordance with the applicable provisions of the NATO Status of Forces Agreement.

11. The United States Government will incur no tax or other financial liability from any activities within the Management or Airfield Areas. The United States Government will not be required to compensate Canada for losses incurred in the event of reentry.

12. The United States will continue to control access to and usage of the waters adjacent to, or in the vicinity of, the Management and Airfield Areas, as those waters are delineated in the exchange of Notes signed August 13 and October 23, 1947, as corrected by the 1978 sublease, except to the extent that such waters are included in the description of the Management Area set out in Annex A. Control over the portion of the waters described in Annex A will be exercised by the Management Authority as necessary for safety and efficient operation of the Management Area, anchorages, moorings and movements of ships and waterborne craft within Argentia Harbor.

13. The provisions of the 1941 Agreement shall apply to the Management and Airfield Areas while this agreement is in force to the extent that they are not inconsistent with or superseded by the provisions of this Annex.

14. All subleases granted by Canada of the whole or any part of the Management and Airfield Areas shall contain a provision to the effect that the same are issued subject to the provisions of this Agreement, including the right of reentry set forth in paragraphs 1 and 2 of this Annex, and the restrictions contained in paragraph 6 of this Annex.

15. This Agreement and the sublease of Canada shall be free from the payment of all rent and charges other than the indemnification required by paragraph 10 of this Annex.

16. Subject to the provisions of paragraphs 1 and 2 of this Annex, the Government of the United States covenants with the Government of Canada for the quiet enjoyment of the Management and Airfield Areas.

ANNEX C

(MAP OF AIRFIELD AND MANAGEMENT AREAS)

(Original has been transmitted to Department of External Affairs, Ottawa.)