Agreement Between Her Majesty The Queen in Right of Canada as Represented by the Minister of Industry and NAV CANADA Regarding Radio Frequency Spectrum Management

November 1, 2007

Spectrum Management and Telecommunications
Terrestrial Radiocommunication Agreements and Arrangements

Note

All persons making use of this consolidation are reminded that the document included herein is provided only for convenience of reference. This consolidation is for the guidance of those engaged in radiocommunications in Canada. The information contained in this document is subject to change without notice. While every reasonable effort has been made to ensure accuracy, no warranty is expressed or implied. For more details, please contact the Spectrum Management Operations Directorate.

Prepared by:

Industry Canada
Radiocommunications and
Broadcasting Regulatory Branch
300 Slater Street
Ottawa, Ontario
K1A 0C8

Via email: ic.spectrumpublications-publicationsduspectre.ic@canada.ca

All spectrum publications are available on the Internet at http://www.ic.gc.ca/spectrum.


Contents


This amended and restated agreement is made

between:
Her Majesty The Queen In Right Of Canada,

(Herein called "Her Majesty"),

represented by the Minister of Industry

(Herein called "the Minister")

— and —

NAV CANADA,
A corporation incorporated under the provisions of Part II of the Canada
Corporations Act (Canada)

(Herein called "NAV CANADA").

Whereas Her Majesty has responsibility under Annex 10 of the Convention on International Civil Aviation, known as the Chicago Convention, to designate certain radio frequencies, within the spectrum, for use by aeronautical services and, to the greatest extent possible, keep those frequencies free from Harmful Interference;

And Whereas pursuant to the Radiocommunication Act, R.S. 1985, c. R-2, as it may be amended from time to time, the Minister is responsible for the orderly development and efficient operation of radiocommunication in Canada;

And Whereas Her Majesty, as represented by the Minister of Transport, and NAV CANADA entered into an agreement which was originally executed on the 1st day of April, 1996 for the transfer of the civil air navigation service from Her Majesty to NAV CANADA (the "Agreement to Transfer");

And Whereas pursuant to the Agreement to Transfer, Her Majesty, as represented by the Minister of Industry and NAV CANADA entered into an agreement which came into effect the 28th day of June, 2002, setting out the roles and responsibilities of the parties with regard to the management of the radio frequency spectrum allocated for aeronautical services;

And Whereas under the Agreement to Transfer, Her Majesty and NAV CANADA have agreed to enter into this amended and restated Agreement;

Now Therefore This Agreement Witnesses that, in consideration of the respective covenants and agreements of the parties herein contained and on the terms and subject to the conditions hereinafter set out, the parties agree as follows:

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Article 1 - Definitions

Section 1.01 - Definitions

For the purpose of this Agreement, unless the context otherwise requires, the following terms shall have the respective meanings set out below and grammatical variations of such terms shall have the corresponding meanings:

"Agreement" means this agreement and any Appendix hereto, including any amendment to either the agreement or its appendices, entered into by the parties from time to time;

"Assignment" means an authorization given by the Minister for a radio station to use a radio frequency or a radio frequency channel under specified conditions;

"Business Day" means any day other than Saturday, Sunday or statutory holiday in the province of Ontario;

"FM Broadcasting Undertaking" means any distribution undertaking, programming undertaking or network operation within the 88 MHz to108 MHz frequency band to which the Broadcasting Act applies;

"Frequency Selection" means the designation of a radio frequency or radio frequency channel from the specified table of radio frequencies or channels set out in Appendix A;

"Harmful Interference" means an adverse effect of electromagnetic energy from any emission, radiation or induction that

  1. endangers the use or functioning of a safety-related radiocommunication system, or
  2. significantly degrades or obstructs, or repeatedly interrupts, the use or functioning of radio apparatus or radio-sensitive equipment;

"NAVCOM" means aeronautical radio-navigation and communication services;

"Proposals" has the meaning ascribed to it in section 5.02(a) of this Agreement;

"Resolve" means to take the necessary action to mitigate identified sources of Harmful Interference in such a fashion that the interference is unlikely to re-occur.

Section 1.02 - Other Defined Terms

Other terms are defined in the context in which they appear and shall have the meanings there indicated.

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Article 2 - Interpretation

Section 2.01 - Subdivisions

Unless otherwise stated, a reference herein by numerical or alphabetical designation to an Article, Section, Subsection, Paragraph or Subparagraph shall refer to the Article, Section, Subsection, Paragraph or Subparagraph bearing that designation in this Agreement.

Section 2.02 - Number and Gender

Words importing the singular shall include the plural and vice versa and words importing a particular gender shall include all genders. The use of the neuter singular pronoun to refer to NAV CANADA is deemed a proper reference. The necessary grammatical changes required to make the provisions of this Agreement apply shall in all instances be assumed as though in each case fully expressed.

Section 2.03 - Headings

The division of this Agreement into Articles, Sections, Subsections, Paragraphs and Subparagraphs and the insertion of headings are for convenience of reference only and shall not affect the construction or interpretation of this Agreement.

Section 2.04 - Day of Notice

If the day on which any act or payment is required to be done or made under this Agreement is a day which is not a Business Day, then such act or payment shall be duly performed or made if done on the next following Business Day.

Section 2.05 - Currency

In this Agreement, unless otherwise specified, the word dollar and the $ sign refer to Canadian currency.

Section 2.06 - Statutes, Regulations and Rules

Any reference in this Agreement to all or any part of any statute, regulation or rule shall, unless otherwise stated, be a reference to that statute, regulation or rule or the relevant part thereof, as amended, substituted, replaced or re-enacted from time to time.

Section 2.07 - Governing Law

This Agreement shall be construed, interpreted and enforced in accordance with, and the respective rights and obligations of the parties shall be governed by, the laws of the Province of Ontario and Canada as applicable. Nothing in this Agreement is intended to or shall be construed as limiting, waiving or derogating from any Federal Crown prerogative.

Section 2.08 - Rights or Remedies of Other

Nothing expressed or implied in this Agreement is intended to or shall be construed to confer on or to give any person, other than the parties hereto and their respective successors and permitted assigns, any rights or remedies under or by reason of this Agreement.

Section 2.09 - Construed Covenants

All of the provisions and each obligation or agreement of this Agreement, even though not expressed as a covenant, are to be construed as covenants and agreements as though the words importing such covenants and agreements were used in each separate provision hereof.

Section 2.10 - No Contra Proferentem

There shall be no presumption that any ambiguity in this Agreement be resolved in favour of either of the parties.

Section 2.11 - No Derogation or Abrogation

Nothing in this Agreement shall be construed to abrogate or derogate from any of the duties, rights or responsibilities of the Minister of Industry under law.

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Article 3 - Agreement on Radio Frequency Selection and Coordination

Section 3.01 - Representations and Warranties of NAV CANADA

NAV CANADA represents that it has the capacity and authority to enter into this Agreement and to perform its duties and that it knows of no reason, fact or event, current, imminent or probable, that would materially compromise its ability to perform its duties.

Section 3.02 - Compliance with Laws

NAV CANADA represents that it is in compliance with the Radiocommunication Act and regulations promulgated thereunder.

Section 3.03 - No Conflict

NAV CANADA represents that no individual, to whom the post-employment provisions of the Conflict of Interest and Post-Employment Code for Public Office Holders or the Conflict of Interest and Post-Employment Code for the Public Service apply, will derive a direct benefit from this Agreement unless that individual is in compliance with the applicable post-employment provisions.

Section 3.04 - Reliance on Representations

NAV CANADA acknowledges that the Minister has relied on the representations set out in sections 3.01, 3.02 and 3.03 and that they are deemed to be continuing for the term of this Agreement.

Section 3.05 - Frequency Selection

The parties agree that, subject to the terms and conditions of this Agreement, NAV CANADA shall carry out Frequency Selection within those radio bands apportioned for aeronautical purposes as set out in Appendix A. The Minister shall retain all other radio frequency spectrum management functions not specifically assigned to NAV CANADA, including the right to issue authorizations pursuant to the Radiocommunication Act.

Section 3.06 - Duties of NAV CANADA in Frequency Selection

In carrying out the Frequency Selection of radio frequencies pursuant to Section 3.05, NAV CANADA shall:

  1. maintain and adhere to a manual of procedure, that meets with the satisfaction of the Minister, for its radio Frequency Selections, electromagnetic compatibility (EMC) studies and radio frequency channel co-ordinations;
  2. ensure, to the Minister's satisfaction, that personnel, including back-up personnel, are available and competent to perform the duties described in (a), on all Business Days and that only those trained personnel are engaged in those duties;
  3. receive and provide impartial treatment to all requests, for radio frequency co-ordination, originated by non-NAV CANADA entities;
  4. obtain the Minister's approval of all proposed radio frequency Assignments before the facilities that are to use the radio frequencies are rendered operational;
  5. maintain a NAV CANADA Frequency Assignment System database and provide copies to the Minister upon request. The data provided will be suitable for the Department to conduct theoretical electromagnetic compatibility predictions;
  6. coordinate with the Minister, in an expeditious manner, requests by Her Majesty's Department of National Defence for temporary operation utilizing aeronautical radio frequencies or radio channels; and
  7. within the overall framework of the Minister's electromagnetic spectrum utilization plans and allocations, select those radio frequencies required for aeronautical communications or navigational services from within bands outlined in Appendix A as may from time to time be amended in accordance with the terms of the Agreement, and provided those bands remain allocated for aeronautical services.

Section 3.07 - Default, Recovery and Remedies

Section 3.07.1 - Default

The following constitute events of default:

  1. NAV CANADA becomes bankrupt or insolvent, goes into receivership, or takes the benefit of any statute relating to bankrupt or insolvent debtors;
  2. an order is made or resolution passed for the winding up of NAV CANADA or NAV CANADA is dissolved;
  3. in the Minister's opinion, acting reasonably, NAV CANADA ceases to carry on business;
  4. NAV CANADA has knowingly submitted false or misleading information or has made misrepresentations to the Minister; or
  5. NAV CANADA has not met or satisfied a term or condition of this Agreement.

Section 3.07.2 - Notice of Default

Where there is an event of default or where, in the Minister's opinion, there is likely to be a default under this Agreement, the Minister shall give NAV CANADA at least 30 days notice in writing to cure the default and to notify the Minister in writing that the default has been cured, failing which the Minister may terminate this Agreement.

Section 3.07.3 - No Arbitration

No decision by the Minister to terminate this Agreement pursuant to sections 3.07.1 and 3.07.2 may be referred to arbitration under Article 9. In the event of such termination, NAV CANADA's remedy is limited to proceedings against Her Majesty subject to the Crown Liability and Proceedings Act.

Section 3.08 - Duties of the Minister

The Minister shall:

  1. forward any and all requests, for radio frequency assignments within the bands listed in Appendix A, to NAV CANADA immediately upon receipt in order that NAV CANADA may perform its functions under Section 3.05; and
  2. make reasonable efforts to render, within 50 calendar days of receipt of a completed radio licence application from NAV CANADA, his decision on whether to issue a licence and, if the decision is that a licence should be issued, issue the licence promptly thereafter

Section 3.09 - Technical Audit

  1. NAV CANADA shall, at the Minister's request and at no cost to the Minister, provide promptly any information determined by the Minister, acting reasonably, to be necessary to enable the Minister to determine if NAV CANADA is performing its duties under this Agreement.
  2. For the duration of the Agreement and any renewal thereof, NAV CANADA shall, at its own expense, ensure access by the Minister to its premises for technical audit and evaluation purposes, at all reasonable times upon reasonable notice by the Minister.

Section 3.10 - Special Arrangements

The following special arrangements will apply for coordinating the allotment and Assignment of the aeronautical radio frequencies outlined in Appendix A:

  1. NAV CANADA will be responsible for coordinating proposed radio frequency Assignments and allotments with the Federal Aviation Administration of the United States pursuant to the Canada-United States arrangement, Agreement Concerning the Coordination and Use of Radio Frequencies Above Thirty Megacycles per Second, with Annex (Above 30 MHz Agreement), as amended.1
  2. The Minister will provide input to NAV CANADA in developing positions for presentation to the International Civil Aviation Organization relating to spectrum utilization or compatibility.
  3. The Minister represents Canada at World Radiocommunication Conferences sponsored by the International Telecommunication Union (ITU), as well as during other activities involving the ITU.
  4. The Minister and NAV CANADA will cooperate with each other on any radio frequency spectrum arrangements, which may have a bearing or impact, either nationally or internationally, on aeronautical telecommunications and transportation.
  5. The Minister will coordinate radio frequency Assignments with all countries except as set out in (a) above.

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Article 4 - Agreement on Radio Frequency Interference Investigation and Resolution

Section 4.01 - Introduction

  1. In order to conduct its business, NAV CANADA is required to operate safety-related radiocommunication systems.
  2. Each party has access to unique resources which may be combined in order to successfully investigate and Resolve cases of Harmful Interference.
  3. As such, both parties agree that, where required, they will combine those resources and work together in investigating and resolving cases of Harmful Interference to NAV CANADA's aeronautical radiocommunication systems.

Section 4.02 - Shared Responsibilities

The Minister and NAV CANADA shall:

  1. undertake to safeguard from Harmful Interference licensed aeronautical radiocommunication facilities whether operated by NAV CANADA or published for public use. Recognizing the inherent difficulties in protecting mobile units from interference, both Parties will endeavour to provide similar protection to mobile receivers, operating on the frequencies listed in Appendix B;
  2. meet as necessary, upon the request of either party, to discuss radio frequency interference (RFI) resolution efforts;
  3. review and update points of contact periodically;
  4. endeavour to resolve any problems or disagreements that may arise during the term of this Agreement;
  5. each provide engineering and management support to field staff, as necessary, during an investigation;
  6. each be responsible for their own operational costs, incurred during an investigation. (e.g. equipment and vehicle expenses, overtime wages, cost of airborne operations, etc.); and
  7. keep confidential, subject to applicable laws or mutual agreement to the contrary:
    1. the data provided for the purpose of investigations, and
    2. the results of the investigations.

Section 4.03 - NAV CANADA Responsibilities

NAV CANADA shall:

  1. designate a lead person to act as officer of primary interest (the "OPI") who will receive reports of interference initiated by NAV CANADA operational staff and evaluate the significance of each report before determining which cases should be referred to Industry Canada. After a case is referred to Industry Canada, the OPI shall continue to function as a facilitator of information and communication flow between the two organizations and to direct NAV CANADA resources to assist in the identification and resolution of the interference;
  2. conduct an initial investigation of RFI incidents and rule out both intrasystem interference and faulty NAV CANADA equipment as the source of the interference;
  3. evaluate the urgency of a RFI incident and determine if it warrants contacting the designated Industry Canada officials and asking them to respond to a problem outside of normal working hours2;
  4. provide Industry Canada with an RFI report that includes:
    1. the rationale for designating an RFI incident as Harmful Interference;
    2. the significance of the RFI incident and the urgency of resolution requested;
    3. the type and nature of the interference that was observed;
    4. the frequency, the location, the date(s) and time(s) of occurrence, type of equipment involved; and
    5. where appropriate and available, aircraft position data and sound recordings of the detected interference.
  5. institute policies and procedures, as may be required, to ensure that suitable and timely RFI documentation is available to Industry Canada and to NAV CANADA investigators;
  6. cooperate as fully as possible with Industry Canada to assist with their RFI investigation, including but not limited to assisting with field support; and
  7. provide airborne RFI investigation support to Industry Canada, if appropriate, when Industry Canada ground-based techniques are insufficient to detect the interference or locate the source.

Section 4.04 - The Minister's Responsibilities

The Minister shall:

  1. provide interference identification and resolution services to NAV CANADA, in accordance with Industry Canada Client Procedure Circular 3-13-02, "Provision of Interference Identification and Resolution Services on a 24/7 basis for Safety Services";
  2. endeavour to consult with NAV CANADA, prior to making any changes to Client Procedure Circular 3-13-02, "Provision of Interference Identification and Resolution Services on a 24/7 basis for Safety Services", and to provide NAV CANADA with reasonable notice if those changes will impact on NAV CANADA;
  3. evaluate all RFI reports, received from NAV CANADA's OPI, and assign a high priority to those cases considered to constitute Harmful Interference;
  4. in the event of a disagreement over the designation of Harmful Interference, provide the rationale for that assessment;
  5. assign staff to investigate and Resolve, in a timely manner, those cases of Harmful Interference reported by NAV CANADA;
  6. take action, as quickly as possible, to Resolve reported cases of Harmful Interference;
  7. provide NAV CANADA with timely reports on the status of RFI investigations, involving NAV CANADA frequency assignments, and access to all related RFI documentation and data, including but not limited to databases, reports, studies, maps of field strength contours and investigation related software;
  8. where feasible, provide NAV CANADA technical personnel with access to Industry Canada technical resources, including necessary instruction where applicable, to assist NAV CANADA with an on-going investigation; and
  9. provide NAV CANADA with points of contact for obtaining RFI resolution services after normal office hours.

Section 4.05 - Intellectual Property Rights

The parties recognize that successful collaboration may involve the exchange of technical information, which is confidential and proprietary to one of the parties. Accordingly, both parties agree that, subject to the Access to Information Act (Canada), technical information that is disclosed by one party will be distributed on a need-to-know basis only and will not be disclosed to a third party without prior written consent of the disclosing party.

Section 4.06 - Equipment

The parties recognize that successful collaboration may involve the loan of equipment from one party to the other or the joint acquisition of equipment by the parties. In either case, the parties shall enter into acceptable written arrangements with respect to such loans or joint acquisitions which shall address, among other matters, ownership, costs, use, maintenance and repair, disposal and termination.

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Article 5 - FM/NAVCOM Electromagnetic Compatibility Analyses

Section 5.01 - Introduction

Both parties agree to work together to prevent Harmful Interference to NAV CANADA radio services from FM Broadcasting Undertakings operating within the 88 MHz to108 MHz frequency band as set out in this article.

Section 5.02 - The Minister's Responsibilities

The Minister shall:

  1. analyze all proposals for new FM Broadcasting Undertakings and all modifications to existing FM Broadcasting Undertakings for which a broadcasting certificate is required (collectively called "Proposals") to determine the potential for Harmful Interference to NAV CANADA services;
  2. ensure that the Industry Canada FM broadcasting station database is current, reasonably accurate  and readily accessible to NAV CANADA by mutually acceptable means;
  3. ensure that the most recent versions of the FM broadcasting and NAVCOM databases are used to conduct analysis and that each analysis is performed in a mutually acceptable manner;
  4. submit analysis results to NAV CANADA in a mutually acceptable form (e.g. electronic, hard-copy, facsimile) which shall include, but not be limited to:
    1. a complete and accurate analysis summary sheet in a mutually agreeable format;
    2. all files generated by the analysis software, including the analysis report;
    3. a graph of the FM station antenna horizontal broadcasting pattern, unless the pattern is uniformly omni-directional and is declared as such in the Proposal;
    4. all technical parameters required by NAV CANADA to complete its review of the analysis; and
    5. any other information or documentation held by the Minister that would assist NAV CANADA in its review of the Proposal.
  5. advise NAV CANADA of any special deadline requirements or any other special circumstances that may apply to a Proposal;
  6. not be required to submit an analysis to NAV CANADA if that analysis shows no predicted interference. In such cases the Minister may specify the conditions that will apply to the applicant on behalf of NAV CANADA. Such standard conditions shall, as a minimum, be as stipulated in section 5.04(a) of this Agreement. In all cases a copy of the analysis summary sheet as referred to in section 5.02(d)(i) of this Agreement, shall be submitted to NAV CANADA for its records;
  7. not give final approval for an FM Broadcasting Undertaking prior to receipt of NAV CANADA's recommendations;
  8. retain the right to approve an FM Broadcasting Undertaking contrary to the recommendation of NAV CANADA. In such cases, NAV CANADA shall be provided with a detailed justification for the decision and shall be given not less than 30 days to review and contest such a decision if it so desires. Both parties shall endeavor to reach a mutually satisfactory solution to any such disagreement. The Minister recognizes that approval of an FM Broadcasting Undertaking contrary to NAV CANADA's recommendation may interfere with the aviation industry's ability to carry on business in Canada; and
  9. be the primary point of contact for broadcasters and their representatives.

Section 5.03 - NAV CANADA's Obligations

NAV CANADA shall:

  1. review all Proposals and request, if required, additional information within two (2) weeks of their receipt;
  2. review analyses and endeavor to provide a recommendation within six (6) weeks of receipt of all required or requested information. Responses shall be in the form of the summary sheet referred to in section 5.02(d)(i) above;
  3. make reasonable efforts to satisfy special requests or deadlines, subject to internal resources and constraints;
  4. provide the Minister with an estimated response time as soon as practicable if circumstances prevent a response within six (6) weeks, or prior to a special deadline requested by the Minister;
  5. ensure that the FM broadcasting station and NAVCOM databases used are current if performing any further analysis on a Proposal;
  6. ensure that the NAVCOM database is current and reasonably accurate and readily accessible to the Minister by mutually acceptable means;
  7. provide a recommendation to the Minister as to whether an application for an FM Broadcasting Undertaking should be approved or not;
  8. specify conditions, with explanation where necessary, that Industry Canada take into consideration prior to authorizing an application. NAV CANADA shall be provided with an explanation if the Minister chooses not to impose one or more of the recommended conditions and shall be given a reasonable opportunity to respond. The Minister recognizes that failure to impose conditions recommended by NAV CANADA may result in interference with the aviation industry's ability to carry on business in Canada; and
  9. provide a brief explanation for Proposals that have been assessed as "not recommended. "Upon request, NAV CANADA shall be required to provide a detailed explanation and justification for a "not recommended" assessment.

Section 5.04 - Conditions for FM Broadcasting Undertakings

  1. In all cases, the Minister shall impose the following conditions on new or amended FM Broadcasting Undertakings:
    1. off-air measurements or listening checks on airport receivers, as determined by NAV CANADA, shall be performed at the start of on-air testing to ensure that no spurious emissions are present in the 108 MHz to 137 MHz frequency band that could cause harmful interference to NAV CANADA's radio services. NAV CANADA shall recognize that Industry Canada's resources are finite and that for stations located in remote areas, as determined by Industry Canada, a listening check for possible spurious emissions shall be the primary and preferred option.
    2. there shall be no increase in existing spurious emission levels in aeronautical frequency bands; and
    3. the NAV CANADA regional engineering office shall be advised by Industry Canada at least two (2) weeks prior to the commencement of on-air testing and/or regular broadcasting.
  2. Under exceptional circumstances, the conditions set out in 5.04(a)(i) and (ii) may be waived or amended by written agreement between authorized representatives of the Minister and NAV CANADA, and the new or altered FM Broadcasting Undertaking will be subject to such conditions as are set out in that agreement. The condition set out in 5.04(a)(iii) may be unilaterally waived or amended by NAV CANADA.
  3. At the request of either party, both parties shall meet to discuss procedures set out in this Article and issues arising from this Article.
  4. NAV CANADA may, at its sole discretion and subject to any conditions that it sees fit to apply, agree to alter its facilities to alleviate interference or predicted interference to its facilities from an existing or proposed FM Broadcasting Undertaking. It shall not, however, under any circumstances be bound to do so.
  5. The Minister and NAV CANADA shall use the same version of the software referred to in the "FM/NAVCOM Technology Intellectual Property Rights Agreement" effective May 1, 2004, to perform the analyses contemplated in this Article, subject to the terms set out in that agreement as signed by Kim Troutman of NAV CANADA and Michael Binder of Industry Canada.

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Article 6 - Term

Section 6.01 - Term

This Agreement shall commence on the 1st day of November 2007 and shall remain in effect for a period of 10 years, renewable upon the consent of the parties, unless terminated by mutual agreement of both parties or upon termination by the Minister upon 30 days notice if NAV CANADA is in material breach of any of the terms of this Agreement. In so doing the Agreement shall be terminated in such a manner so as not to increase any safety risk to civil aviation.

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Article 7 - Indemnity

Section 7.01 – Indemnity of Her Majesty

NAV CANADA shall indemnify and save harmless Her Majesty and Her servants, agents, officers and employees from any and all claims, suits, liabilities, damages, losses, judgements, costs and expenses sustained or incurred by Her Majesty as a result of any act or failure to act by NAV CANADA under the terms of this Agreement except to the extent that NAV CANADA's act or failure to act is caused by an act or failure to act on the part of Her Majesty or the Minister. NAV CANADA will have in place and maintain public liability insurance which will provide adequate funding for the risks outlined above. NAV CANADA will also supply proof of up-to-date insurance upon request by the Minister.

Section 7.02 – Indemnity of NAV CANADA

Her Majesty shall indemnify and save harmless NAV CANADA and its servants, agents, officers and employees from any and all claims, suits, liabilities, damages, losses, judgements, costs and expenses sustained or incurred by NAV CANADA as a result of any act or failure to act by Her Majesty under the terms of this Agreement except to the extent that Her Majesty's act or failure to act is caused by an act or failure to act on the part of NAV CANADA.

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Article 8 - Payment

Section 8.01 - Payments

For the Frequency Management Spectrum services as detailed at section 4 and section 5, herein, NAV CANADA shall provide these services at no charge to Her Majesty.

For the Radio Station Licences provided by Her Majesty to NAV CANADA for the term of this Agreement, and subject to the terms and conditions set out in this Agreement, Her Majesty shall provide the Licences, for all of NAV CANADA sites, at an annual fee as stipulated by applicable provisions of the Radiocommunication Act and the Radiocommunication Regulations.  The annual fee will be based on the number of NAV CANADA sites requiring the licence.

Section 8.02 – Invoices

Her Majesty shall submit its charges for the Radio Station Licences on separate invoices for individual accounts to cover all of NAV CANADA sites.

All invoices for the charges for the Radio Station Licences shall be delivered to the address identified on individual accounts.

Section 8.03 – Payment of Invoices

NAV CANADA shall pay the amount due on any invoice within thirty (30) days of the date of receipt thereof.

Section 8.04 – Disputed Amount

In the event that NAV CANADA believes that it has been improperly charged for any amount contained in an invoice referred to in section 8.01, above, NAV CANADA shall pay the amount of the invoice and may request the Minister to review the invoice to redetermine the amount owing, taking into account any issues raised by NAV CANADA.

Section 8.05 – Resolving Disputed Amount

In the event that NAV CANADA is not satisfied by the redetermination made under section 8.04, then NAV CANADA may have recourse to arbitration as envisaged by Article 9, but nothing herein absolves NAV CANADA, as a condition precedent to arbitration, from the requirement that NAV CANADA pay the amount of a disputed invoice in full.

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Article 9 - Arbitration

Section 9.01 - Application

Subject to Article 3.07.3, any dispute or difference between the parties hereto arising under this Agreement shall be referred to an arbitration tribunal for an award and determination by written submission signed by or on behalf of either the Minister or NAV CANADA.

Section 9.02 - Jurisdiction of the Arbitrator

The arbitrator may determine all questions of law and jurisdiction including questions as to whether the dispute is arbitrable and has the right to grant permanent and interim injunctive relief and shall have the discretion to award costs including reasonable legal fees, interest and costs of the arbitration.

Section 9.03 - Governing Legislation

Each arbitration pursuant to this Agreement shall be conducted pursuant to the Commercial Arbitration Code (the "Code") set out in the schedule to the Commercial Arbitration Act (Canada) and all regulations made and, from time to time, in force thereunder.

Section 9.04 - Agreement re: the Commercial Arbitration Code

The parties agree as follows with respect to the Code:

  1. Article 3: Notwithstanding the provisions of Article 3 of the code, Notices shall be given and deemed received in accordance with the provisions of Section 10.07 of this Agreement.
  2. Article 7: For the purposes of Article 7 of the Code, this Article 9 shall constitute the "arbitration agreement."
  3. Articles 10 and 11: For the purposes of Articles 10 and 11 of the Code, the arbitral tribunal shall be selected as follows:
    1. After such notice and demand being given and deemed received in accordance with the provisions of Section 10.07 of this Agreement, the parties shall:
      1. within ten (10) days, jointly select a single arbitrator, or
      2. if the parties fail to select a single arbitrator within such a ten (10) day period, they shall each appoint an arbitrator within seven (7) days. If one party selects an arbitrator, and the other party neglects or refuses to do so within the time specified, the arbitral tribunal shall be the sole arbitrator selected above. If each party selects an arbitrator, the two arbitrators so selected shall, within five (5) days, select a third arbitrator as chairperson of the arbitration. If the two arbitrators selected as described above do not agree upon a third, then either party may apply to a court of competent jurisdiction to appoint the third arbitrator who shall chair the arbitral tribunal.
  4. Article 20: For the purposes of Article 20 of the Code, each arbitration pursuant to this Agreement shall be conducted at Ottawa, or such other place as the parties may agree upon.
  5. Article 22: Pursuant to Article 22 of the Code, the language used in all arbitral proceedings
    shall be English unless the parties hereto agree otherwise.
  6. Article 28: For the purposes of paragraph (1) of Article 28 of the Code, the rules of law applicable to any dispute before an arbitral tribunal shall be the laws in effect in the Province of Ontario and in Canada at the time the dispute arose. For the purposes of paragraph (3) of Article 28 of the Code, the arbitral tribunal is not authorized to decide ex aequo et bono or as amiable compositeur.
  7. Article 34: Reference in Article 34 of the Code to a "court" shall be references to the Federal Court Trial Division or, where applicable, any court of appeal therefrom.
  8. Article 35: For the purposes of Article 35 of the Code, an arbitral award shall be final and binding and, upon application to the Federal Court in accordance with the Federal Court Act (Canada) and its regulations, shall be enforced as a judgement or award of that Court.

Section 9.05 - Obligations During Arbitration

During the progress of arbitration, the parties shall continue to perform their obligations under the Agreement.

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Article 10 - General Provisions

Section 10.01 - Assignment

Neither party hereto shall assign this Agreement nor any of the party's rights, duties or obligation hereunder. Any attempt by a party hereto to assign this Agreement of any of the party's rights, duties or obligations hereunder is void.

Section 10.02 - Entire Agreement

This Agreement supersedes and revokes all negotiations, arrangements, letters or intent, brochures, representations and information conveyed, whether oral or in writing, relating to radio frequency spectrum management, between the parties hereto or their representatives or any other person purporting to represent the Minister or NAV CANADA. NAV CANADA agrees that it has not been induced to enter into this Agreement by any representations not set forth in this Agreement.

Section 10.03 - No Partnership or Delegation

Her Majesty and NAV CANADA expressly disclaim any intention to create a partnership, joint venture or joint enterprise. It is understood, acknowledged and agreed that nothing contained in this Agreement nor any acts of Her Majesty or NAV CANADA shall constitute Her Majesty and NAV CANADA as partners, joint venturers or principal and agent in any way or for any purpose. NAV CANADA shall not represent or hold itself out to be an agent of Her Majesty. No party hereto shall have any authority to act for or to assume any obligations or responsibility on behalf of the other party hereto. For greater certainty, neither this Agreement nor any other document contemplated by this Agreement shall constitute or be construed or be deemed to constitute or be construed as a delegation by the Minister to NAV CANADA of any of his powers, duties or functions.

Section 10.04 - Amendment

No amendment, variation, addition, deletion (which term includes lining out), rider or other change to this Agreement shall have any force or effect unless it is in writing and unless it is signed by both the Minister and NAV CANADA.

Section 10.05 - Waiver

  1. The failure by any party hereto to insist in any one instance upon the strict performance by the other party hereto of its obligations hereunder shall not constitute a waiver or relinquishment of any such obligations as to any other instances, and the same shall continue in full force and effect.
  2. No covenant or condition of this Agreement may be waived by any party hereto except by the written consent of that party, and forbearance or indulgence by that party in any regard whatsoever and no matter how long shall not constitute a waiver of the covenant or condition and until performed or waived in writing that party shall be entitled to invoke any remedy available to that party under this Agreement or by law, despite the forbearance of indulgence.

Section 10.06 - Severability

If, for any reason, any provision of this Agreement is held or rendered invalid, void, illegal or unenforceable to any extent, for any reason whatsoever, then the particular provision shall be deemed to be independent of and severed from the remainder of this Agreement and all the other provisions of this Agreement shall nevertheless continue in full force and effect.

Section 10.07 - Notice

All notices or other communications necessary for the purposes of this Agreement (each a "Notice") shall be in writing and shall be delivered personally or by courier, or shall be sent by registered mail or by prepaid post or sent by facsimile, addressed,

  1. in the case of the Minister, to:

    Director General
    Radiocommunications and Broadcasting Regulatory Branch
    300 Slater Street
    Ottawa, Ontario
    K1A 0C8
    Attention: Mike Connolly
    Facsimile: 613-993-4433

    or to such other address or facsimile number or addressed to such other person as the Minister may, from time to time, designate by notice to NAV CANADA; and

  2. in the case of NAV CANADA, to:
    By Courier                    or

    NAV CANADA
    280 Hunt Club Road
    Ottawa, Ontario
    K1V 1C1
    By Post Office

    NAV CANADA
    280 Hunt Club
    P.O. Box 9825, Stn. T
    Ottawa, Ontario K1G 6R3

Attention: Daniel Bouchard
Telephone: 613-248-6916
Telecopier: 613-248-7152

or to such other address or facsimile number or addressed to such other person as NAV CANADA may, from time to time, designate by notice to the Minister.

Any notice or communication will be considered to have been received:

  1. in the case of facsimile, on actual receipt, and
  2. in all other cases, on the date of delivery.

If the postal service is interrupted, or threatened to be interrupted, or is substantially delayed, any notice shall be delivered personally or by facsimile.

Section 10.08 - House of Commons

As required by the Parliament of Canada Act R.S.C (1985) ch. P-1 (Canada), it is an express condition of this Agreement that no member of the House of Commons shall be admitted to any share or part of this Agreement or to any benefit arising therefrom.

Section 10.09 - Approval

This Agreement shall not constitute approval by Her Majesty or any federal agency or the fulfilment of any requirement under the Competition Act (Canada) or successor legislation thereto.

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Article 11 - Effective Date

Section 11.01 - Effective Date

The parties agree that this Agreement, although signed by the parties on different dates, shall have effect from the 1st day of November, 2007.

In Witness Whereof the Minister of Industry, on behalf of Her Majesty the Queen in right of Canada, has hereunto subscribed his signature and NAV CANADA has hereunto affixed its corporate seal attested to by the hands of its proper officers in that behalf as of the day and year first above written.

Heer Majesty The Queen
In Right Of Canada

space to insert signature
Name: Mike Connolly
Office: Director General,
Radiocommunications and Broadcasting Regulatory Branch
for the Minister of Industry

NAV CANADA

space to insert signature
Name: Mr. John Crichton
Office: President and CEO
NAV CANADA

space to insert signature
Name: Mr. William Fenton
Office: Vice President Finance and CFO
NAV CANADA

space to insert signature
Name: Mr. Kim Troutman
Office: Vice President, Engineering
NAV CANADA

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Appendix A - Frequency Bands Relevant to Frequency Selection and Coordination

Frequency Bands Relevant to Frequency Selection and Coordination
Frequency Band Use
74.8-75.2 MHz ILS, Marker Beacons
108.0000-121.9875 MHz VOR, ILS, ATCS, VHF Comm
123.5875-128.8125 MHz VHF Comm
132.0125-136.4875 MHz VHF Comm
328.6-335.4 MHz ILS Glide Slope
960-1215 MHz DME, TACAN, TCAS, SSR
5030-5091 MHz MLS

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Appendix B - Frequency Bands Relevant to Radio Frequency Interference Investigation and Resolution

Frequency Bands Relevant to Radio Frequency Interference Investigation and Resolution
Frequency Band Use
190-535 kHz Non-Directional Beacons
3-30 MHz Aeronutical HF
74.8-75.2 MHz ILS, Marker Beacon
108-118 MHz VOR, ILS Localizer
118-137 MHz VHF Comm (defined in IC RIC-39)
328.6-335.4 MHz ILS Glide Slope
960-1215 MHz DME, TACAN, TCAS
1176.45 MHz GPS L5
1030 and 1090 MHz Secondary Surveillance Radar
1227.6 MHz GPS L2
1240-1370 MHz Primary Surveillance Radar
1559-1610 MHz GPS L1/GLONASS
5030-5091 MHz MLS
9000-9500 MHz Precision Approach Radar
15.7-16.2 GHz ASDE  RADAR

1 Exchange of notes at Ottawa, October 24, 1962. Entered into force October 24, 1962. USA: Treaties and Other International Acts Series (TIAS) 5205; CAN: Canada Treaty Series (CTS) 1962 No. 15.

Agreement Revising the Technical Annex to the Agreement of October 24, 1962 (TIAS 5205/ CTS 1962 No.15). Effected by exchange of Notes at Ottawa, June 16 and 24, 1965. Entered into force June 24, 1965. USA: TIAS 5833/CAN: CTS 1962 No. 15.

2 Although office hours may vary, depending on district office staffing levels, all offices are normally open from 8:00 a.m. to 4:00 p.m. on any Business Day.

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