North Atlantic Treaty Organisation Privileges and Immunities Order: SOR/2024-126

Canada Gazette, Part II, Volume 158, Number 13

Registration
SOR/2024-126 June 10, 2024

PRIVILEGES AND IMMUNITIES (NORTH ATLANTIC TREATY ORGANISATION) ACT

P.C. 2024-659 June 10, 2024

Her Excellency the Governor General in Council, on the recommendation of the Minister of Foreign Affairs, makes the annexed North Atlantic Treaty Organisation Privileges and Immunities Order under section 4^{footnote a} of the Privileges and Immunities (North Atlantic Treaty Organisation) Act ^{footnote b}.

North Atlantic Treaty Organisation Privileges and Immunities Order

Interpretation

Definitions

1 (1) The following definitions apply in this Order.

international civilian personnel

means personnel — recruited from among the nationals of a party to the North Atlantic Treaty — who are appointed to the Organisation, assigned to international posts appearing on the approved establishment of a subsidiary body of the Organisation and subject to the Organisation’s Civilian Personnel Regulations, as amended from time to time. (personnel civil international)

military personnel

means military personnel of a force of a party to the North Atlantic Treaty, including its civilian component, who are attached for administrative service with the Organisation. (personnel militaire)

Organisation

means the North Atlantic Treaty Organisation and subsidiary bodies set up by the Council under Article 9 of the North Atlantic Treaty, other than military headquarters. (Organisation)

Status of Forces Agreement

means the Agreement between the Parties to the North Atlantic Treaty regarding the Status of their Forces, done at London on June 19, 1951. (Convention sur le statut des forces)

temporary personnel

means personnel who are recruited from among the nationals of a party to the North Atlantic Treaty to satisfy temporary requirements of the Organisation and who are subject to the Organisation’s Civilian Personnel Regulations, as amended from time to time. (personnel temporaire)

Interpretation — military personnel

(2) For the purposes of the definition military personnel in subsection (1), force and civilian component have, respectively, the same meaning as in sub-paragraphs 1(a) and (b) of Article I of the Status of Forces Agreement.

Rights, Privileges and Immunities

Legal capacity

2 (1) The Organisation has the legal capacity of a corporation.

Privileges and immunities

(2) The Organisation has the privileges and immunities set out in Articles 5 to 11 of the Ottawa Agreement.

Foreign representatives of Member States

3 (1) Foreign representatives of Member States of the Organisation have, to the extent required for the discharge of their duties, the privileges and immunities set out in Article 13 of the Ottawa Agreement.

Official clerical staff

(2) Official clerical staff accompanying a foreign representative of a Member State of the Organisation have, to the extent required for the discharge of their duties, the privileges and immunities set out in Article 14 of the Ottawa Agreement.

International civilian personnel and military personnel

4 (1) International civilian personnel and military personnel have, to the extent required for the exercise of their functions, the privileges and immunities set out in Articles 18 and 19 of the Ottawa Agreement.

Article 20 of Ottawa Agreement

(2) International civilian personnel of grade G22 and above and military personnel of equivalent military rank have, to the extent required for the exercise of their functions, the privileges and immunities set out in Article 20 of the Ottawa Agreement.

Temporary personnel

(3) Temporary personnel assigned to DIANA have, to the extent required for the exercise of their functions, the privileges and immunities set out in Articles 18 and 19 of the Ottawa Agreement.

Definition of DIANA

(4) For the purposes of subsection (3), DIANA means the Defence Innovation Accelerator for the North Atlantic, a subsidiary body of the Organisation, set up under Article 9 of the North Atlantic Treaty.

Family members

(5) The family members forming part of the household of the temporary personnel referred to in subsection (3), of the international civilian personnel and of the military personnel have the privileges and immunities set out in paragraphs (b) and (d) of Article 18 of the Ottawa Agreement.

Military personnel

(6) The privileges and immunities enjoyed by military personnel and their family members under subsections (1) and (5), respectively, do not affect the privileges and immunities enjoyed by them under the Status of Forces Agreement.

Experts on mission

5 (1) Experts have, to the extent required for the exercise of their functions, the privileges and immunities set out in Article 21 of the Ottawa Agreement.

Definition of experts

(2) For the purposes of subsection (1), experts means experts referred to in Article 21 of the Ottawa Agreement who are nationals of a party to the North Atlantic Treaty and who are employed on missions on behalf of the Organisation.

Canadian citizens

6 Canadian citizens have, under this Order, only the privileges and immunities set out in Articles 19 and 23 of the Ottawa Agreement.

Interests of the Organisation

7 (1) The privileges and immunities granted to individuals under this Order are granted not for their personal benefit but rather in the interests of the Organisation.

Waiving of immunity granted

(2) In accordance with Article 22 of the Ottawa Agreement, the Organisation has the right and the duty to waive the immunity that has been granted if, in its opinion,

• (a) the immunity would impede the course of justice; and
• (b) the immunity can be waived without prejudice to the interests of the Organisation.

Coming into Force

Registration

8 This Order comes into force on the day on which it is registered.

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Order.)

Issues

An Order under the Privileges and Immunities (North Atlantic Treaty Organisation) Act, R.S.C., 1985, c. P-24 (the NATO Act) is required for Canada to establish and host the North American Regional Office of the Defence Innovation Accelerator for the North Atlantic (DIANA).

Background

Approved in 2021, NATO’s DIANA aims to bring together the Alliance’s most promising start-ups, scientific researchers, and technology companies to solve critical defence and security challenges supporting allied interests. Once fully operational, DIANA is expected to encompass a wide network of innovation sites across the Alliance. All 31 NATO Allies are members of DIANA, and the initiative enjoys broad support across the Alliance. This entity will support NATO developing its technological edge against potential adversaries and competitors. DIANA will have two Regional Offices — one in Europe and one in North America. Once fully operational, DIANA is expected to encompass a wide network of innovation sites across the Alliance.

At the 2022 Madrid Summit, Prime Minister Trudeau announced Canada’s intention to host the North American Regional Office of DIANA and on November 18, 2022, Minister Anand (former Minister of Defence) announced that Canada proposed the Halifax Regional Municipality as the location for the Regional Office. The establishment of the North American Regional Office of DIANA is jointly supported by the Ministers of Defence and Foreign Affairs in accordance with their respective Ministerial Mandate Letters.

In addition to hosting the Regional Office, Canada has also offered to NATO to establish a small satellite office in the Greater Toronto Area, which will operate as an administrative space primarily used for meetings, engagement, and relationship management, to fully leverage the region’s globally ranked innovation centre, complementing the Regional Office by facilitating engagement with other innovation hubs in Canada and the United States. The interim Regional Office will be established in summer 2024, with the permanent Regional Office established the following summer. The satellite office in the Greater Toronto Area is estimated to be established by 2025–2026.

Objective

The Order implements Canada’s obligations under the Agreement on the status of the North Atlantic Treaty Organisation, National Representatives and International Staff (the Ottawa Agreement) by providing NATO, including the DIANA North American Regional Office, with legal status in Canada, and granting applicable privileges and immunities to the organization and its personnel.

The Order is necessary to establish the North American Regional Office of DIANA, which will support the already strong and favourable relationship between NATO, NATO Allies and Partners, and the Government of Canada.

Description

Privileges and immunities provided in the Order are drawn from those listed under the Ottawa Agreement. Privileges and immunities are granted for the official functions of NATO, including DIANA and not for commercial use, nor for the personal benefit of the individuals themselves. Canadian citizens would receive tax relief privileges provided under Article 19 of the Ottawa Agreement. No other duty and tax relief privileges would be provided to Canadian citizens residing or ordinarily resident in Canada.

The Order provides applicable privileges and immunities to NATO and DIANA officials, representatives of member states and experts on mission when in Canada. In accordance with the Ottawa Agreement, high-ranking NATO and DIANA officials (at and above a level agreed between NATO and Canada) are provided the privileges and immunities granted to officials as well as those normally accorded to diplomatic personnel of comparable rank.

The Order provides the following privileges and immunities:

To NATO, including the DIANA regional and satellite offices, for example,

• inviolability of its premises, documents and archives and immunity from legal process, unless waived by NATO;
• exemption from direct taxes (i.e. income tax), rebate of sales taxes (e.g. the Goods and Services Tax/Harmonized Sales Tax); and
• exemption from customs duties and taxes in respect of articles imported or exported for official use and not for sale in the country (i.e. scope is limited to official, non-commercial purposes).

To NATO and DIANA officials, for example,

• immunity from legal process in respect of words spoken or written and/or acts done by them in their official capacity;
• immunity, together with their spouses and family residing with them, from immigration restrictions;
• exemption from taxation on salaries and emoluments paid by the organization;
• the right to import free of duties and taxes their furniture and personal effects at the time of first taking up their post in Canada; and
• the right to temporarily import free of duty their private motor vehicles.

To representatives of NATO member states when in Canada, for example,

• immunity from personal arrest or detention;
• immunity from legal process in respect of words spoken or written and of acts done by them in their official capacity;
• inviolability for all papers and documents and immunities in respect of personal baggage; and
• exemption, together with the representative’s spouse, from immigration restrictions.

To experts employed on missions for NATO, as necessary to effectively carry out their functions in Canada, for example,

• immunity from personal arrest or detention and from seizure of their personal baggage;
• immunity from legal process in respect of words spoken or written or acts done by them in the performance of their official functions; and
• inviolability for all papers and documents relating to the work on which they are engaged for NATO.

Regulatory development

Consultation

No public consultation or prepublication was required because the Order aligns with Canada’s obligations under the Ottawa Agreement, a legally binding treaty.

Consultations were undertaken by Global Affairs Canada with the provinces of Ontario and Nova Scotia. Since both are HST provinces, a rebate of the amounts of tax paid on goods and services bought in Canada for official use would apply automatically. No further action is required from Ontario or Nova Scotia regarding sales tax. Moreover, income tax that is exempt for federal tax purposes is also exempt for provincial tax purposes. The Order is not expected to have an impact on additional stakeholders.

Modern treaty obligations and Indigenous engagement and consultation

An initial assessment of the geographic scope and subject matter of the Order did not identify any modern treaty obligations.

Instrument choice

An Order under the NATO Act is the only mechanism through which Canada can provide privileges and immunities to NATO, including DIANA and to its personnel.

Regulatory analysis

Benefits and costs

Granting certain privileges and immunities to NATO and DIANA officials, representatives of member states and experts on mission when in Canada is essential so that they can adequately carry out their functions in Canada.

This will support Canada’s deepening relations with NATO and improve existing diplomatic and programmatic engagement with the organization by facilitating meetings in Canada with key NATO counterparts. Strong diplomatic relations with NATO are expected to advance Canada’s explicit interests in the transatlantic region, including regarding peace and security and technology and innovation.

The privileges and immunities are provided to officials and representatives of NATO member states not for the personal benefit of the individuals themselves but rather to enable them to carry out their functions in relation to NATO, including DIANA.

The Order does not generate any material costs for government, industry, consumers, or Canadians. The costs, if any, to the government through the tax and duty-related privileges are insignificant.

Small business lens

Analysis under the small business lens concluded that the Order will not impact Canadian small businesses.

One-for-one rule

The one-for-one rule does not apply to this Order, as there is no impact on business.

Regulatory cooperation and alignment

While the Order is not related to a work plan or commitment under a formal regulatory cooperation forum, the Order implements Canada’s obligations under the Ottawa Agreement and will be viewed favourably by NATO, NATO Allies, and by other stakeholders. Canada has worked with NATO officials to align the privileges and immunities provided for the North American Regional Office with those of the European Regional Office.

Strategic environmental assessment

In accordance with the Cabinet Directive on the Environmental Assessment of Policy, Plan and Program Proposals, a preliminary scan concluded that a strategic environmental assessment is not required.

Gender-based analysis plus

Gender-based analysis plus (GBA+) impacts have been considered in relation to the making of the Order and no differential impacts have been identified.

Implementation, compliance and enforcement, and service standards

The Order comes into force on the day on which it is registered. The member state representatives, officials and experts on mission will enjoy privileges and immunities described in the Order whenever they are posted to Canada or come to Canada on official business.

Contact

Eric Laporte
Director
Security and Defence Relations (IGR)
Global Affairs Canada
Telephone: 343‑203‑3196
Email: eric.laporte@international.gc.ca