DUTCH LOW-LEVEL FLIGHTS IN CANADA Update V
Unauthorized translation of the EXPLANATORY MEMORANDUM of the
Dutch government to the low-level flight agreement by Mirjam
Niemans and a SUMMARY of the response by the Foundation Innu
Support Group by Charles van den Ouweland.
Govert de Groot
coordinator
Foundation Innu Support Group NL
PO BOX 13670
NL- 2501 ER The Hague
The Netherlands
phnr. + 31 70 3888553
New faxnr: + 31 70 4020943
e-mail: innusuppnl@gn.apc.org
To the Parliamental committee of foreign affairs and defence.
Re: written preparation w.r.t. extension low level flying
treaty with Canada.
SUMMARY
Dear members of the second chamber of parliament,
The Innu Support Group urges you not to extend the low-level
flying
(l.l.f.) treaty. Annoyance should not be exported.
We welcome that the government has postponed the l.l.f. in
Canada until approval by the Parliament of the l.l.f. treaty.
In the memorandum of explanation, the government no longer
considers the area as uninhabited, and attention is given to
the case of the Innu. However, the memorandum contains also
some errors:
Introduction
The current l.l.f. is incomparable to the situation in the
fifties, because of the type of jet planes used nowadays
(Tornados, Phantoms and F16s). The cost of l.l.f. was 335
million guilders, while it was budgeted at only 196 million in
1986. At this moment, Germany and the UK have moved their
exercises partly to elsewhere. France and Italy have abandoned
the idea of using Goose Bay. Considering the statement of the
Canadian DND that a minimum of 18,000 flights is required for
reasons of economy, the question is whether the budgeted cost
(175 million guilder) will not be exceeded.
Necessity of l.l.f.
The parliament itself has done an investigation regarding the
necessity of l.l.f. because NATO didn't give a clear result of
investigations. There is also the report of Alan H. Bloomgar-
den, stating that l.l.f. is obsolete.
The government does not write anything about the Belgian
l.l.f., which is being conducted under the Dutch treaty.
Environmental aspects
Criticism of the Innu Nation regarding the environmental
impact study was layed down in the "Compendium of Critiques of
the EIS", which was sent to the Parliament. When it appeared
impossible for the Innu to question the EIS experts of DND,
the Innu gave up attending the hearings. Finally the EIS was
not done for the 30,000 square km with which the area was
extended.
The Innu will participate during 6 months in the Institute
monitoring the l.l.f. in order to see if the Institute is
sufficiently objective.
The Innu find that there is not enough money to have their own
biologists do scientific research. And most of the money is
spent for administrative purposes. Another complaint is that
the Canadian government refuses to promise to stop the l.l.f.
in case the Institute would advise to do so.
Minorities
We object to the term minority. It concerns an indigenous
people, satisfying the criteria as described by the Dutch
government.
Currently, negotiations between the Canadian government, the
Innu and the Inuit are taking place.
The Dutch government hides itself behind the Canadian govern-
ment regarding its responsibility against the IVBPR.
We request the Parliament to postpone its discussion on the
treaty until after appraisal of ILO treaty 169.
The communication between the Innu and the DND is still subop-
timal.
Satellite telephones cost $5,000 and short wave radios do not
always function. Nevertheless, the position of the hunting
camps can be known, because the private helicopter and air
plane companies have to communicate their flying routes to
DND.
The Innu in Nitassinan remain opposed to the l.l.f. exercises
but if you insist in export, they ask you the following:
A. a functioning avoidance program: block avoidance as it was
proposed in the short meeting between you and Innu Nation in
Sheshashit (May 1996). DND is willing to discuss block avoi-
dance as long as it does not affect the l.l.f. program, alt-
hough no talks have taken place yet.
B. The l.l.f. Monitoring Institute should function properly,
i.e. objectively, with enough participation of indigenous
side.
Furthermore, its advice must be considered binding.
Kind regards,
Govert de Groot
Foundation Innu Support Group
EXPLANATORY MEMORANDUM
Approval of the Agreement between the Kingdom of the Nether-
lands and Canada for the continuation of the agreement of 4/5
December 1986 regarding the training of Dutch forces in Canada
Introduction
The current agreement serves to replace the agreement that
came about by correspondence on December 4/5 at The Hague,
between the Kingdom of the Netherlands and the Canadian gove-
rnment regarding the training of Dutch forces in Canada (Trb.
1987, 20), which ended December 31, 1996. Above-mentioned
agreement referred to the training of units of the Royal Air
Force in low-level flying out of CFB Goose Bay. Although the
current agreement also provides for the possibility to train
other units of the Dutch forces in Canada, it will mainly
serve as a legal basis for the continuation of the low-level
flights.
The Canadian Forces Base Goose Bay, situated in Labrador, has
been in operation since 1941 and has been used for low-level
flight training since the end of the 1950's. Initially only
the United Kingdom was using the Base at Goose Bay for low-
level flight training. Starting 1980, the Canadians themsel-
ves, the United States and Germany joined these trainings. The
Kingdom of the Netherlands has been participating in these
trainings since 1986.
The Dutch trainings out of Goose Bay are executed on the basis
of two documents. The previous mentioned agreement of 1986, in
which the general agreements, the permission for low-level
flight training and the status of the personnel are explained,
and the Memorandum of Understanding (MoU), signed February 20,
1996, between the Ministers of Defense of Canada, the United
Kingdom, Germany and the Kingdom of the Netherlands regarding
allied military activities in Goose Bay. In above-mentioned
MoU the more detailed agreements are explained.
The necessity of low-level flying
After the changed safety-situation in 1989, NATO has studied
and confirmed the necessity of low-level flying in a number of
studies. The arguments in favour of low-level flying are based
on a number of elements, like surprise, the avoidance of
protection weapons (?), (visual) identification of targets,
air-defence against low-level flying enemies and bad weather
conditions.
Low-level flying, of course, brings forth several risks for
the pilot involved. There is an increased risk of collision
with obstacles or with the ground and a vulnerability for
light weapons. The first risk can be avoided by great skill
and expertise of the pilot; the second risk should be accepted
as such.
In recent conflicts low-level flights have only scarcely been
executed. This, however, was more a result of the local condi-
tions than failure of the tactics used. Apart from this it is
important and an obligation on the grounds of humanitarian
war-rights, to protect civilians as much as possible in mili-
tary combat. Visual identification of the target previous to
an attack can contribute to this and can be of the utmost
importance during the confusing conditions on the ground
during peace-operations. Weather conditions and terrain condi-
tions play an important role as well. The expected operational
areas of the Royal airforces entail that, when visual contact
is necessary to accomplish the mission, this usually is only
possible at low or medium altitude. Because the greatest risk
of all air-defense systems is formed at medium height, and
because of this the selfprotection measures can become over-
burdened, low-level flying tactics will often be called upon.
Considering the probability of its operational use, a decrease
in the training of low-level flying is not acceptable.
One can conclude from this that it is necessary to continue
low-level flight training unabated to maintain an optimum
flexibility of airweapons. In connection to the changes in the
possibilities to execute low-level flight trainings in Europe,
the number of low-level flights out of Goose Bay, has been
increased. Concerning low-level flight training out of Goose
Bay the Netherlands has need for a maximum of 4000 flights per
year. As has been posed at the general meeting of the perma-
nent committee for Defense (see articles II1995/6, 24 400 X,
nr. 78), in general no more than 3000 flights will be execu-
ted. If a considerable higher number of flights, up to the
maximum of 4000, will be executed, the parliament will be
informed of this. Parliament will also be informed if other
nations will become part of the low-level flying project. The
requisite number of flights will be explained in the MoU and
therefore will not be further discussed in the following
consideration of the agreement.
Environmental aspects
The Canadian EIS concerning low-level flying out of Goose Bay
was discussed extensively when the extension of the MoU was
being discussed. The most important conclusions of the EIS
were that there has been no evidence of major damage to the
environment and that an independent institution should be
formed to investigate the effects on the environment on a more
permanent basis. This institution should play an advisory role
and all people living in the area should be represented in it.
At the moment the institute is being formed, but they are
still awaiting the answer of the Innu population. The Innu are
of the opinion that the institute should be allowed to give
compelling advice. The Canadian government on the other hand
has already made known that if the institution should give the
advice to stop low-level flight training, it would be willing
to do so.
In the agreement, environmental concerns have been posed in
several ways. As in the agreement of 1986, apart from the
general terms and conditions, special mention is made that the
Netherlands armed forces shall respect Canadian laws, regula-
tions and orders applicable to the Canadian forces with res-
pect to the protection of the environment. As in the agreement
of 1986, mention is also made that the Netherlands shall bear
the costs for environmental studies, projects, undertakings or
monitoring surveys related to the activities of the Nether-
lands armed forces units training in Canada. The condition
that, following the termination or suspension of the agree-
ment, the Netherlands shall share the proportionate costs,
previously applying mainly to the costs of range sweep opera-
tions and disposal of unexploded munition, has been expanded
to the costs of environmental clean-up and site restoration.
Minorities
The most outspoken opponents of low-level flying out of Goose
Bay are the Innu-Indians. It is not clear how large this group
exactly is; in the EIS of 1995 mention is made of over 1200
people, while other estimates speak of 1500 to 13000 people.
Because the Innu population consists of Naskapi and part
Montagnais, apart from Innu, it is more than likely that
higher estimations are based on the total population of these
three peoples. The Innu do not live in the low-level flight
areas themselves, but in two villages in the neighborhood of
Happy Valley-Goose Bay (Sheshatshit and Utshimassit). The Innu
go into the country twice a year to set up traditional hun-
tingcamps. These periods do not coincide with the "high"
season for low-level flight training, but do show some overlap
with the low-level flight period. This is why Innu might be
present in the low-level flight areas during the exercises.
The Innu are of the opinion that the low-level flying exerci-
ses take place above territory that belongs to them. Every
indigenous people in Canada can introduce a claim for land
that traditionally and from early days on has been inhabited
by this people. These landclaims are constitutionally recogni-
zed, as are remaining rights of indigenous peoples. The Innu
introduced a landclaim that comprises almost two-thirds of the
province of Labrador, and a large part of Quebec (an area
about the size of continental Europe). Besides, this landclaim
seriously overlaps a previously introduced landclaim by the
Labrador Inuit. And finally the Innu have boycotted negotia-
tion with the Canadian government for a considerable time
because they were dissatisfied with the way negotiations were
going.
The relationship between the Canadian government and the Innu
is an internal Canadian affair. Nevertheless, it has been
argued that the Netherlands, by participating in the low-level
flight training project, is contributing to the violation of
Innu rights. It is stated that low-level flying would comprise
a violation of the international treaty concerning civil and
political rights (ITCPR) (Trb. 1969, 99) signed on December
19, 1966 in New York, as well as a violation of the so-called
"Rio Declaration concerning the environment and development"
(UNCED) (UN conference document A/CONF. 151/26 (Vol.1)). As
mentioned before, the Canadian constitution (Constitution
Act,1981, which comprises also the Canadian Charter of Rights
and Freedoms) comprises a number of rights specifically for
indigenous peoples. Canada is a party to the ITCPR, as well as
the protocol, also signed December 19, 1966 in New York, that
is part of the ITCPR (Trb. 1969, 99) and which provides an
arrangement for complaints. Concerning the Rio Declaration,
the requirement of ordering an EIS whenever an activity might
endanger the environment (principal 17) has been fulfilled, as
well as, by constitutional demand, the principal concerning
respect for the indigenous inhabitants (principal 22).
As far as the low-level flight training area is concerned,
apart from the legal and constitutional side of respecting
human rights, there are several practical measures that have
been taken to alleviate the nuisance. For example communicati-
on devices are offered to be able to communicate the location
of the hunting camps. These locations are subsequently avoi-
ded. It is remarkable, however, that as early as 1990, during
legal proceedings instituted by the Innu in Canada, it has
been established that the Innu systematically refuse to co-
operate with these solutions. It has even occurred that hun-
tingcamps were reported to be abandoned, after which, without
warning, they were being occupied again and subsequently
complaints were made about overflights of such a camp.
It is clear that the heart of the matter lies with the fact
that the Innu people have not yet reached an agreement with
the Canadian government concerning their landclaims. The Innu
have tried to involve the Dutch government in these negotiati-
ons by demanding that the Netherlands enter direct negotiati-
ons with the Innu on the basis of equality. However, according
to international law, this is not possible. Without any ques-
tion the Innu deserve respect and understanding. Nothing
indicates, however, that the Canadian government does not
comply with this. This subject has been discussed at length in
parliament in the past (see for example Handelingen II 1995/6,
page 58 4193-58 4197).
The agreement
As indicated in the introduction at this point the agreement
will mainly serve to continue the above mentioned low-level
flight training out of Goose Bay. The design of the agreement
has, however, been expanded, so that it is possible to execute
other military training activities on Canadian territory
besides low-level flying. These would include for example
trainings opportunities for the Marine Corps, or for units of
the Royal airforce other than low-level flight training and
out of different locations than Goose Bay. Locations where
these trainings and exercises will be held, shall be determi-
ned in consultation with the Ministers of Defense of both
countries.
The status of the personnel for these purposes shall be equal
to those explained in the agreement. The previous mentioned
MoU, however, only concerns the use of low-level flight faci-
lities in Goose Bay. This means that other, operational agree-
ments for these possible exercises or trainings of other units
of the Dutch forces in Canada, shall be determined separately.
At this time there are no concrete plans for execution for any
of these trainings or exercises.
Explanation by article
Article 1
The only alteration with regard to the agreement of 1986 is
that the location of Goose Bay has been replaced by "Areas in
Canada mutually selected". This alteration has been made to
make it possible for other units of the Dutch forces to execu-
te exercises in Canada. Of course, these exercises will not
take place in the same area as the low-level flights are being
held. Because of this, the agreement does not only comprise
low-level flight training, but also the carrying out of other
military exercises and trainings by Dutch forces on Canadian
territory.
Article 2
This article has not been altered.
Article 3
New is the referral to the obligations of Canada under inter-
national law. Apart from this, the application of Dutch rules
and regulations concerning the training has been made depen-
dent on Canadian laws and regulations. Legally this has always
been the case. For clarity this has been mentioned explicitly
this time.
Article 4
This article has not been altered.
Article 5
The content of this article has not been altered, but the
words are chosen such that they are equal to the wording of
other agreements between Canada and the UK and Germany respec-
tively.
Article 6
This article has not been altered.
Article 7 and 8
The content of these articles are equal to article 7 of the
agreement of 1986.
Article 9
Removed has been the referral to non-military vessels, vehi-
cles and aircraft. This regulations in the agreement of 1986
(article 8) was legally an addition to article VIII, first
paragraph, of the agreement between States party to the North
Atlantic Treaty, (signed in London, June 19, 1951), concerning
the juridical position of their forces (NATO Status-Treaty)
(Trb. 1951, 114), and has been altered on Canadian request.
Present wording are currently equal to those of other biateral
agreements.
Article 10
Alterations with respect to the agreement of 1986 (article 9),
are the demand that the MoU be in conformity with the agree-
ment itself and the referral to the amendment clause of the
MoU. Legally this was already the case, but for clarity this
has also been put into correct wording.
Article 11
This new article is necessary to clarify the relation between
the new agreement and the previous agreement.
Article 12
Alteration with respect to the agreement of 1986 (article 10,
section a) is that presently it is possible to extend the
agreement for five years after the current term of ten years.
Such an extension falls under article 9, first paragraph,
juncto (?) article 7, section e, of the State law approval and
announcement of agreements.
Article 13
This article has not been altered in relation to the definiti-
on of article 10, section b, of the agreement of 1986.
Article 14
This article has been altered concerning the definition of
article 11, section a, of the agreement of 1986, by adding the
requirement of bearance of costs for possible forced lay-offs
or breach of contract at termination or suspension of the
agreement. Such a provision is customary, and in view of the
investments made by Canada in the low-level flight project,
self-evident. It is equally self-evident that the exact amount
shall be subject of further discussion and that the left over
amount will be negotiated with possible taxes.
Article 15
This article has not been altered in relation to the definiti-
on of article 11, section b, of the 1986 agreement.
Article 16
This article has been altered in relation to the definition of
article 11, section e, of the 1986 agreement, by adding envi-
ronmental clean-up and site restoration to disposal of unex-
ploded munitions.
As far as the Kingdom of the Netherlands in concerned, the
agreement shall only concern the Netherlands.
Secretary of Defense
J.C. Gmelich Meijling
Minister of Foreign Affairs
H.A.F.M.O. van Mierlo