EXEMPTION FROM SUBSECTION 202.42(1), PARAGRAPH 700.05(1)(b) AND SUBSECTIONS 706.09(1) AND (2) OF THE CANADIAN AVIATION REGULATIONS

From: Transport Canada

EXEMPTION FROM SUBSECTION 202.42(1), PARAGRAPH 700.05(1)(b) AND SUBSECTIONS 706.09(1) AND (2) OF THE CANADIAN AVIATION REGULATIONS

Pursuant to subsection 5.9(2) of the Aeronautics Act, and after taking into account that the exemption is in the public interest and not likely to affect aviation safety, I hereby exempt Airborne Energy Solutions Ltd. (hereinafter referred to as “AES”) P.O. Box 1229, Whitecourt, Alberta, T7S 1P1 from the requirements of subsection 202.42(1), paragraph 700.05(1)(b) and subsections 706.09(1) and (2) of the Canadian Aviation Regulations (CARs) subject to the following conditions. 

The details of the above provisions are provided in Appendix A to this exemption.

PURPOSE

The purpose of this exemption is to:

  1. Allow AES to have operational control of two Mi-26T helicopters, without the aircraft having a Canadian type certificate.  The aircraft will be added to the types authorized on AES’s 702 Air Operators Certificate; however, the aircraft shall remain registered in Russia and shall remain in the legal custody and control of UTair Aviation Company, a Russian company. However, AES may operate only one Mi-26T helicopter at any given time to conduct flights on behalf of Pacifica Resources Ltd.;
  2. Allow AES to permit UTair Aviation Company to perform maintenance on the Mi-26T helicopters when performance of the maintenance by UTair Aviation Company has not been approved by the Minister as being in conformity with the CARs;
  3. Allow AES to conduct the operations described above in a manner that will take advantage of the unique lifting capabilities of the Mi-26T helicopter without adversely affecting commercial operations utilizing Canadian Type Certificated aircraft; and
  4. Allow AES to utilize the Mi-26T helicopters to move externally, large pieces of equipment, required by Pacifica Resources Ltd. for the construction of facilities at the Selwyn Mine Project, for the Cantung mine site situated near the Yukon / NWT border.

APPLICATION

This exemption applies to AES when it has operational control of two Mi-26T helicopters under contractual agreement with UTair Aviation Company, a Russian company.  The Mi-26T helicopters shall remain registered in Russia and UTair Aviation Company shall retain legal custody and control of the aircraft, and provide flight crews and maintenance services for the aircraft.

The exemption shall be issued for no longer than 30 days, beginning on or after April 4th, 2007. The exemption applies strictly to air services related to the Selwyn Mine Project on behalf of  Pacifica Resources Ltd.

CONDITIONS

This exemption is subject to the following conditions:

  1. AES shall operate the Mi-26T helicopters as an integral part of the AES fleet under subpart 702 – Aerial Work of the CARs;
  2. AES shall not carry on board persons who are not flight crew members;
  3. AES shall maintain the Safety Management System implemented in accordance with the schedule outlined in the “Operating Agreement” attached at Appendix B to this exemption;
  4. AES shall adhere to the terms and conditions of the “Operating Agreement” between Transport Canada and AES, attached at Appendix B to this exemption, except for that part of paragraph 5.1 dealing with subpart 703 operations, and you shall read Pacifica Resources – Selwyn Mine Project in place of Nova Gold Galore Creek Project;
  5. AES shall only utilize the Mi-26T helicopter to:
    1. Conduct operations that take advantage of the unique lifting capabilities of this aircraft without adversely affecting commercial operations utilizing Canadian Type Certificated aircraft; and
    2. Conduct operations involving the external transportation of equipment, required by Pacifica Resources Ltd. for the construction of mining and support facilities for the Selwyn Mine Project, at the Cantung mine site situated near the Yukon / NWT border.
  6. AES shall not operate the Mi-26T helicopter over built-up areas not directly associated with the operations described in item 5 above with the exception of transit to and from a maintenance base;           
  7. AES shall operate in weather minima of 500 feet ceiling for day VFR operations in uncontrolled airspace, and provided that the Mi-26T pilots comply with subsection 722.17(2) of the Commercial Air Service Standard (CASS), a visibility of one-half statute miles;
  8. AES shall qualify an UTair Aviation Company Check Pilot as it would do for a Canadian Check Pilot;
  9. AES shall obtain from UTair Aviation Company a certificate of insurance for liability coverage in the amount of $50, 000, 000 (fifty million) Canadian dollars, valid for the full period of the exemption;
  10. AES shall direct UTair Aviation Company to conduct the maintenance of the Mi-26T helicopter in accordance with the maintenance requirements of the Russian Civil Aviation Authority;
  11. AES shall direct UTair Aviation Company to hold a valid Russian air operator certificate and maintenance certificate or equivalent documents, as well as documentary proof that the maintenance requirements of item 10 above have been met; and
  12. AES shall operate only one Mi-26T helicopter at any given time to conduct flights on behalf of Pacifica Resources Ltd.

VALIDITY

This exemption is in effect until the earliest of:

  1. 23:59 MDT May 3rd, 2007;
  2. The date on which the Mi-26T operations described herein, associated with the carriage of heavy equipment to the Selwyn Mine Project, on behalf of Pacifica Resources Ltd. are completed;
  3. The date on which the agreement between Airborne Energy Solutions Ltd. and UTair Aviation Company is terminated;
  4. The date on which any of the conditions set out in this exemption is breached; or
  5. The date on which this exemption is cancelled in writing by the Minister where he is of the opinion that it is no longer in the public interest or is likely to affect aviation safety.

Dated at Ottawa, Ontario, Canada this 4th day of  April  2007,
on behalf of the Minister of Transport, Infrastructure and Communities.

OSB M.R. Preuss on April 4, 2007

M.R. Preuss
Director General
Civil Aviation

APPENDIX A

RELEVANT SECTIONS OF THE CARs

Subsection 202.42(1) states that subject to section 203.03, no person shall operate in Canada an aircraft that is registered in a foreign state that has been present in Canada for a total of 90 days or more in the immediately preceding twelve-month period unless

  1. the foreign state is a contracting state;
  2. the operator of the aircraft is
    1. the foreign state,
    2. an individual who is not a Canadian citizen or a permanent resident but is a citizen or subject of the foreign state, or
    3. an entity that is incorporated or otherwise formed under the laws of the foreign state; and
  3. if the operator of the aircraft is an entity described in subparagraph (b)(iii), the aircraft is operated in Canada
    1. in accordance with an air operator certificate, or
    2. in any operation other than an operation that would require a private operator certificate if the aircraft were registered in Canada.

Paragraph 700.05(1)(b) states that no Canadian air operator shall operate an aircraft in a commercial air service unless in the case of an aircraft registered in another contracting state, the Minister has authorized its operation under Part II and, where a Canadian type certificate has not been issued for the aircraft type, the aircraft has been approved for operation under Part V.

Subsection 706.09(1) states that no air operator shall permit a person or organization to perform maintenance on the air operator's aircraft unless the person or organization has adequate facilities, equipment, spare parts and personnel available at the site where the maintenance is to be performed and

  1. the person or organization holds an approved maintenance organization (AMO) certificate issued pursuant to Section 573.02 with a rating in a category applicable to the maintenance to be performed;
  2. where the maintenance is to be performed outside Canada by a person or organization that does not hold an AMO certificate issued pursuant to Section 573.02, the person or organization has been approved under the laws of a state that is party to an agreement with Canada that provides for recognition of the work performed; or
  3. in cases other than those described in paragraphs (a) and (b), the performance of the maintenance by the person or organization has been approved by the Minister as being in conformity with these Regulations.

Subsection 706.09(2) states that an air operator shall ensure that a maintenance arrangement made with a person or organization pursuant to subsection (1)

  1. specifies the maintenance required and clearly defines the tasks to be performed; and
  2. is made in accordance with the procedures governing maintenance arrangements included in the MCM or is approved by the Minister as being in conformity with these Regulations.

APPENDIX B

 OPERATIONAL AGREEMENT

Signed by M. Preuss DGCA, D. Sherritt DCBA, K. Fletcher Regional Dir. Civil Aviation - Prairie & Northern Region

 And

 Tony Hunley (President / COO)

Airborne Energy Solutions Ltd.

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