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Exchange of Notes between the Government of Canada and the Government of New Zealand constituting an Agreement to amend their Air Transport Agreement, signed at Ottawa on September 4, 1985 [1995] CATSer 13 (27 June 1995)

E100248 - CTS 1995 No. 36

EXCHANGE OF NOTES BETWEEN THE GOVERNMENT OF CANADA AND THE GOVERNMENT OF NEW ZEALAND CONSTITUTING AN AGREEMENT TO AMEND THEIR AIR TRANSPORT AGREEMENT, SIGNED AT OTTAWA ON SEPTEMBER 4, 1985

I

The High Commissioner for New Zealand to the Minister for International Trade of Canada

OTTAWA, June 27, 1995

Excellency,

I have the honour to refer to the consultations held in Wellington from 6 to 9 November 1990 between delegations representing the Government of New Zealand and the Government of Canada concerning the Agreement between the Government of New Zealand and the Government of Canada on Air Transport signed at Ottawa on 4 September 1985 (hereinafter referred to as "the Agreement") and the Exchange of Notes constituting a Supplementary Agreement concerning capacity also signed at Ottawa on 4 September 1985.

Pursuant to those consultations, I now have the honour to propose, on behalf of the Government of New Zealand, the following amendments to the Agreement, which shall in each case substitute the relevant Article or Annex, as the case may be:

(a) Amendment to Article I relating to Definitions, as set out in Attachment 1 to this Note;

(b) Amendment to Article II relating to the Grant of Rights, as set out in Attachment 2 to this Note;

(c) Amendment to Article IX relating to Aviation Security, as set out in Attachment 3 to this Note;

(d) Amendment to Article XIV relating to Tariffs, as set out in Attachment 4 to this Note; and

(e) Amendment to the Annex to the Agreement containing the Route Schedule, as set out in Attachment 5 to this Note.

If the foregoing is acceptable to the Government of Canada, I have the honour to suggest that this Note and your reply to that effect, which is equally authentic in English and French, shall constitute an agreement between our two Governments amending their 1985 Agreement on Air Transport, which shall enter into force on the date of your reply.

I avail myself of this opportunity to extend to Your Excellency the assurances of my highest consideration.

Maurice McTigue

ATTACHMENT 1

ARTICLE I

For the purposes of this Agreement, unless otherwise stated:

(a) "Aeronautical Authorities" means, in the case of Canada, the Minister of Transport and the National Transport Agency of Canada and, in the case of New Zealand, the Minister of Transport or, in both cases, any other authority or person empowered to perform the functions now exercised by the said authorities;

(b) "Agreed services" means scheduled air services on the routes specified in the Annex to this Agreement for the transport of passengers, cargo and mail, separately or in combination;

(c) "Agreement" means this Agreement, the Annex attached thereto, and any amendments to the Agreement or to the Annex;

(d) "Convention" means the Convention on International Civil Aviation opened for signature at Chicago on the seventh day of December 1944 and includes any Annex adopted under Article 90 of that Convention and any amendment of the Annexes or of the Convention under Articles 90 and 94 thereof so far as those Annexes and amendments have been adopted by both Contracting Parties;

(e) "Designated airline" means an airline which has been designated and authorized in accordance with Articles IV and V of this Agreement;

(f) "Tariffs" means the prices to be paid for the carriage of passengers, baggage and cargo and the conditions under which those prices apply, including prices and conditions for other services performed in connection with air transportation, but excluding remuneration and conditions for the carriage of mail;

(g) "Air Service", "International Air Service", "Airline" and "Stop for non-traffic purposes" have the meaning respectively assigned to them in Article 96 of the Convention;

(h) "Territory" in relation to a State means the land areas and territorial waters adjacent thereto under the sovereignty of that State, provided that, in the case of New Zealand, the term "territory" shall exclude the Cook Islands, Niue and Tokelau;

(i) "Stopover" means a deliberate interruption of a journey by a passenger, agreed to in advance by the airline, at a point between the place of origin and the place of destination;

(j) "Change of gauge" means the operation of one of the agreed services by a designated airline in such a way that one section of the route is flown, in accordance with Article III of this Agreement, by aircraft different in capacity from those used on another section.

ATTACHMENT 2

ARTICLE II

I. Each Contracting Party grants to the other Contracting Party the following rights for the conduct of international air services by the airline or airlines designated by that other Contracting Party;

(a) to fly without landing across its territory;

(b) to land in its territory for non-traffic purposes; and

(c) except as otherwise determined in this Agreement to land in its territory for the purpose of taking up and discharging, on the routes specified in this Agreement, international traffic in passengers, cargo and mail, separately or in combination.

2. The airlines of each Contracting Party, other than those designated under Article IV of this Agreement, shall also enjoy the rights specified in paragraph 1(a) and (b) of this Article.

3. Nothing in paragraph 1 of this Article shall be deemed to confer on a designated airline of one Contracting Party the privilege of taking up, in the territory of the other Contracting Party, passengers, cargo and mail, carried for remuneration or hire and destined for another point in the territory of that other Contracting Party.

ATTACHMENT 3

ARTICLE IX

1. Consistent with their rights and obligations under international law, the Contracting Parties re-affirm that their obligation to each other to protect the security of civil aviation against acts of unlawful interference forms and integral part of this Agreement.

2. Without limiting the generality of their rights and obligations under international law, the Contracting Parties shall in particular act in conformity with the provisions of the Convention on Offences and Certain Other Acts Committed on Board Aircraft, signed at Tokyo on 14 September 1963, the Convention for the Suppression of Unlawful Seizure of Aircraft, signed at the Hague on 16 December 1970, and the Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation, signed at Montreal on 23 September 1971 and any other multilateral agreement governing aviation security binding upon both Contracting Parties.

3. The Contracting Parties shall provide upon request all necessary assistance to each other to prevent acts of unlawful seizure of civil aircraft and other unlawful acts against the safety of such aircraft, their passengers and crew, airports and air navigation facilities, and any other threat to the security of civil aviation.

4. The Contracting Parties shall act in conformity with the aviation security provisions established by the International Civil Aviation Organization and designated as Annexes to the Convention to the extent that such security provisions are applicable to the Contracting Parties; they shall require that operators of aircraft of their registry, operators of aircraft who have their principal place of business or permanent residence in their territory, and the operators of airports in their territory act in conformity with such aviation security provisions. Each Contracting Party shall advise the other Contracting Party of any difference between its national regulations and practices and the aforementioned aviation security provisions. Either Contracting Party may request immediate consultations with the other Contracting Party at any time to discuss any such differences.

5. Each Contracting Party agrees that its operators of aircraft may be required to observe the aviation security provisions referred to in paragraph 4 above required by the other Contracting Party for entry into, departure from, or while within its territory to protect the aircraft and to inspect passengers, crew, carry-on items, baggage, cargo and aircraft stores prior to and during boarding and loading.

6. Each Contracting Party shall give sympathetic consideration to any request from the other Contracting Party for reasonable special security measures to meet a particular threat.

7. Each Contracting Party shall also give sympathetic considerations to a request from other Contracting Party to enter into reciprocal administrative arrangements whereby the aeronautical authorities of one Contracting Party could make in the territory of the other Contracting Party their own assessment of the security measures being carried out by aircraft operators in respect of flights destined to the territory of the first Contracting Party.

8. When an incident or threat of an incident or unlawful seizure of civil aircraft or other unlawful acts against the safety of such aircraft, their passengers and crew, airports or air navigation facilities occurs, the Contracting Parties shall assist each other by facilitating communications and other appropriate measures intended to terminate rapidly and safely such incident or threat thereof.

9. When a Contracting Party has reasonable grounds to believe that the other Contracting Party has departed from the provisions of this Article, the first Contracting Party may request immediate consultations with the other Contracting Party. Failure to reach a satisfactory agreement shall constitute grounds for the application of Article VI of this Agreement.

ATTACHMENT 4

ARTICLE XIV

1. The tariffs to be applied by the airlines of one of the Contracting Parties for carriage on agreed services to and from the territory of the other Contracting Party shall be established at reasonable levels, due regard being paid to all relevant factors including cost of operation, the interests of users, reasonable profit, characteristics of service (such as standards of speed and accommodation) and, where it is deemed suitable, the tariffs of other airlines for any part of the specified route.

2. (a) The tariffs referred to in paragraph 1 of this Article shall be agreed upon, if possible, between the designated airlines of the Contracting Parties; such agreement shall be reached, whenever possible, through the international tariff coordination mechanism of the International Air Transport Association. However, a designated airline shall not be precluded from filing any proposed tariff unilaterally, if circumstances so warrant.

(b) Unless otherwise determined in the application of paragraph 5 of this Article, each designated airline shall be responsible only to its aeronautical authorities for the justification and reasonableness of the tariffs so proposed.

3. (a) The tariffs referred to in paragraph 2 of this Article shall be filed with the aeronautical authorities of both Contracting Parties at least thirty (30) days prior to the proposed effective date unless, in special cases, the aeronautical authorities of both Contracting Parties permit the filing to be made on shorter notice.

(b) Any proposed tariff shall be filed by a designated airline with the aeronautical authorities of both Contracting Parties in such form as the aeronautical authorities of each Contracting Party may separately require.

4. If the aeronautical authorities of one Contracting Party, on receipt of any filing referred to in paragraph 3 of this Article, are dissatisfied with the tariff proposed, they shall so notify the aeronautical authorities of the other Contracting Party within fifteen (15) days from the date of receipt of such tariff. In the event that a shorter period for the submission of a tariff is permitted by the aeronautical authorities of both Contracting Parties, they may also decide that the period of notice for notifying dissatisfaction be less than fifteen (15) days. If notification of dissatisfaction is not given as provided in this paragraph, the tariff shall be deemed to be approved by the aeronautical authorities of the Contracting Party receiving the filing and shall become effective on the proposed date.

5. If a tariff cannot be established in accordance with the provisions of paragraph 2 of this Article or if during the period applicable in accordance with paragraph 4 of this Article a notice of dissatisfaction has been given, the aeronautical authorities of the Contracting Parties shall endeavour to determine the tariff by agreement between themselves. Consultations between the aeronautical authorities will be held in accordance with Article XVIII of this Agreement.

6. If the aeronautical authorities cannot agree on any tariff submitted to them under paragraph 3 of this Article or on the determination of any tariff under paragraph 5 of this Article the dispute shall be settled in accordance with the provisions of Article XX of this Agreement.

7. (a) No tariff shall come into force if the aeronautical authorities of either Contracting Party are dissatisfied with it except under the provisions of paragraph 3 of Article XX of this Agreement.

(b) When tariffs have been established in accordance with the provisions of this Article, those tariffs shall remain in force until new tariffs have been established in accordance with the provisions of this Article or Article XX of this Agreement.

8. If the aeronautical authorities of one of the Contracting Parties become dissatisfied with an established tariff, they shall so notify the aeronautical authorities of the other Contracting Party and the designated airlines shall attempt, where required, to reach an agreement. If within the period of ninety (90) days from the day of receipt of such notification, a new tariff cannot be established in accordance with the provisions of paragraphs 2 and 3 of this Article, the procedures set out in paragraphs 5 and 6 of this Article shall apply. In no circumstances however, shall the aeronautical authorities of a Contracting Party require a different tariff from the tariff of its own designated airline(s) for comparable services between the same points.

9. The tariffs charged by the designated airline(s) of one Contracting Party for carriage between the territory of the other Contracting Party and the territory of a third State involving also points other than on agreed services shall be subject to the approval of the aeronautical authorities of the other Contracting Party and such third State: provided, however, that the aeronautical authorities of a Contracting Party shall not require a different tariff from the tariff of its own airlines for comparable service between the same points. The designated airline(s) of each Contracting Party shall file such tariffs with the aeronautical authorities of the other Contracting Party in accordance with their requirements. Approval of such tariffs may be withdrawn on not less than fifteen (15) days' notice.

ATTACHMENT 5

SECTION 1

Route to be operated by the designated airline or airlines of Canada:

Notes

(a) Any point or points specified above many be omitted on any or all services, but all services shall originate or terminate in Canada.

(b) Aircraft schedules shall recognize the applicable conditions concerning density of movements and allocations of terminal facilities.

(c) The designated airline or airlines of Canada may block-space and sell transportation under its/their own codes(s) on the agreed services operated by the designated airline or airlines of New Zealand.

SECTION II

Route to be operated by the designated airline or airlines of New Zealand:

Notes

(a) Any point or points specified above may be omitted on any or all services, but all services shall originate or terminate in New Zealand.

(b) Only one point in Canada may be selected. However, the designated airline or airlines of New Zealand may block-space and sell transportation under its/their own code(s) on the agreed services operated by the designated airline or airlines of Canada.

(c) The intermediate points and/or the point in Canada may be changed every six months on sixty days notice to the aeronautical authorities of Canada.

(d) If Toronto is selected, the intermediate points served shall not be in the USA west coast states or Texas. Service at Toronto shall be at times of the day and at a terminal building acceptable to the management of Lester B. Pearson International Airport.

II

The Minister for International Trade of Canada to the High Commissioner for New Zealand

Minister for International Trade

OTTAWA, June 27, 1995

His Excellency Maurice P. McTigue
New Zealand High Commissioner
Ottawa

Excellency,

I have the honour to acknowledge the receipt of Your Excellency's Note of today's date which reads as follows:

(See Note from New Zealand from June 27, 1995)

I have the honour to confirm that the contents of the above Note are acceptable to the Government of Canada and that Your Excellency's Note, together with its Attachments and this reply with its Attachments, which are equally authentic in English and French, shall constitute an agreement between the two Governments, which shall enter into force on this day's date.

Accept, Excellency, the assurances of my highest consideration.

Roy MacLaren