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Agreement between the Government of Canada and the Government of the United States of America concerning the Operation of Commercial Remote Sensing Satellite Systems [2000] CATSer 12 (16 June 2000)

E103522 - CTS 2000 No. 14

AGREEMENT BETWEEN THE GOVERNMENT OF CANADA AND THE GOVERNMENT OF THE UNITED STATES OF AMERICA CONCERNING THE OPERATION OF COMMERCIAL REMOTE SENSING SATELLITE SYSTEMS

The Government of Canada (Canada) and the Government of the United States of America (United States), (hereinafter the "Party" or "Parties," as appropriate);

Recognizing that they share mutual interests in regulating and controlling commercial remote sensing satellite systems operating from their respective territories or subject to their respective jurisdiction in accordance with their respective policies, laws and regulations;

Agree to the following terms and conditions set forth in this Agreement and the annexes thereto concerning the use and operation of RADARSAT-2 and such other commercial remote sensing satellite systems as the Parties may agree to make subject to this Agreement:

1. The Parties agree to ensure that such commercial remote sensing satellite systems will be controlled by each Party in a comparable manner in order to protect and serve shared national security and foreign policy interests.

2. Canada agrees to keep in place, until its provisions are enacted into law, the Canadian national access control policy announced on 9 June 1999, set forth in Annex I hereto, concerning such commercial remote sensing satellite systems owned, operated or registered in Canada.

3. Canada agrees to implement controls pursuant to this Agreement, set forth in Annex II hereto, which is protected as commercially confidential, with regard to the operator of RADARSAT-2.

4. The Parties agree to consult regularly on the implementation of this Agreement and on enhanced cooperation in the broader aspects of their respective governmental policies on commercial remote sensing satellites. Such consultations can be called by either Party.

5. This Agreement, including its annexes, which form an integral part hereto, shall enter into force upon signature, may be amended by written mutual agreement and shall continue in force unless terminated by either Party upon six months written notice.

IN WITNESS WHEREOF, the undersigned, being duly authorized to by their respective Governments, have signed this Agreement.

DONE at Washington, in duplicate, this sixteenth day of June 2000, in the English, French languages, each text being equally authentic.

Lloyd Axworthy

FOR THE GOVERNMENT OF CANADA

Madeleine Albright

FOR THE GOVERNMENT OF THE UNITED STATES OF AMERICA

ANNEX I

For the purposes of this Annex only, 'Canada' shall refer to the country rather than the Government of Canada.

Canadian Access Control Policy

The following principles were announced on 9 June 1999 by the Government of Canada to the interdepartmental team of experts elaborating Canada's access control policy and developing the necessary legislative means to implement it.

The Government of Canada reserves the right to:

1. Review and approve all commercial remote sensing satellite systems owned, operated or registered in Canada, considering data access, system architecture, system performance and foreign ownership on a case-by-case basis and specifying limits deemed necessary and sufficient to protect Canada's national security and foreign affairs interests.

2. Interrupt normal commercial service when the availability of data may be detrimental to Canada's national security and foreign affairs interests. Access control directives may consist of spatial, temporal, performance or customer-specific denials or restrictions, or combinations thereof, as deemed necessary on a case-by-case basis. Decisions to invoke, modify or revoke the shutter control directives will be made at the level of a federal minister or designate.

3. Obtain priority access when the availability of data may be beneficial to Canada's national security and foreign affairs interests. Decisions to authorize priority access requests will be made at the level of a federal deputy minister or designate.

The owner, operator or registered entity shall, as appropriate:

1. Register with an appropriate Government of Canada department for approval of the system.

2. Maintain a record of all satellite tasking and allow the Government of Canada timely access to this record and archived data upon request in accordance with lawful authority.

3. Not change the operational characteristics of the system from that registered without formal notification and approval of the appropriate minister(s).

4. Obtain import or export permit(s) pursuant to applicable laws.

5. Not transfer ownership, operation or registration to any company, whether foreign or domestic, without the explicit permission of the appropriate minister(s).

6. Maintain positive control of the satellite at all times, execute such control solely from the jurisdiction of the Government of Canada, and use a command uplink format that enables the Government of Canada to exercise sovereignty over the satellite in accordance with lawful authority.

7. Use a data downlink format that allows the Government of Canada preferred, including exclusive, access to the data during periods when the access control policy has been invoked.

8. Use Government of Canada-approved cryptographic devices to deny unauthorized access.

9. Have no tasking priority higher than national security, except for satellite safety and health, and shall, upon receipt of an accredited means of authorization, ensure timely access to the satellite for the Department of National Defence, the Department of Foreign Affairs and International Trade (DFAIT), and the Canadian Security Intelligence Service and the Royal Canadian Mounted Police of the Ministry of the Solicitor General.

10. Render all necessary and sufficient assistance to a duly authorized officer of the Government of Canada for the diligent and faithful execution of the access control directive(s).

11. Notify DFAIT of its intent to enter into significant or substantial agreements with foreign customers. The notification period shall be sufficient for the Department to co-ordinate with other government departments concerning the review and approval of the proposed commercial agreement with respect to Canada's national security and foreign affairs concerns. DFAIT may also require intergovernmental arrangements or commitments regarding the national security and foreign policy implications of such commercial significant or substantial agreements on a case-by-case basis.

12. Make available to the government of any country, including Canada, data acquired by its system concerning the territory under the jurisdiction of such a government (sensed state) in accordance with the United Nations A/RES/41/65 Principles Relating to Remote Sensing of the Earth from Space. However, such data shall not be provided to the sensed state if its uncontrolled release is determined to be detrimental to Canada's national security and foreign affairs interests.

13. Offer to the Government of Canada, at cost of reproduction and transmission, any data acquired by the system prior to the destruction of that data.

14. Provide periodic reports containing information necessary and sufficient to ascertain compliance with duly established regulations to the Government of Canada.

15. Submit to both announced routine and unannounced non-routine audits or inspections pertaining to the operation of the system by a duly authorized officer of the Government of Canada.

16. Submit to special investigations conducted in accordance with lawful authority.

17. Comply with duly authorized cease-and-desist injunctions and assistance orders in accordance with lawful authority.