As you requested this morning, I have put down some notes on the question of transit rights at Auckland. A copy is attached.

You may use them as you wish in drafting your brief for Mr. McLean.³³

They reflect only my own views and there is nothing official about them.

Yours sincerely,
J.A. IRWIN

DEA/72-AHT-40

(1) In November, 1950, the New Zealand Government replied to our request for stopover rights for CPAL at Auckland. They stated that they were willing to grant transit rights only and on the basis of an exchange of notes.

(2) We replied that in our view we already had the right to fly in transit through New Zealand because New Zealand and Canada were both parties to the Air Services Transit Agreement.34 Therefore, we were not willing to exchange notes.

(3) The New Zealand authorities, while not accepting our position, decided (a year later) to let CPAL exercise transit rights on a temporary basis while they studied the question.

(4) We now doubt whether we can reasonably claim transit rights through New Zealand on the basis of the Air Services Transit Agreement. In fact, it seems fairly clear that we can not.

(5) If vie can be entirely certain on this point, it would seem best to tell the New Zealand Government that we now feel that the Air Services Transit Agreement does not cover the situation at Auckland and that we are ready to exchange notes. Unless the New Zealand authorities have changed their minds about granting transit rights, that should liquidate the problem. Concerning the parallel problem which has arisen with the United Kingdom, such an admission should not prejudice our interests there if we are bound to say the same thing to the United Kingdom.

(6) However, if any doubt remains in our minds concerning the interpretation of the Air Services Transit Agreement, we might tell the New Zealanders that the question has arisen in similar form with the United Kingdom authorities; that we are about to discuss it with them and hope that general enlightenment will result; that we would be gratified if New Zealand would extend its temporary permission for transit rights until such time as we can carry the question further and make some statement on the legal points involved.

(7) There seems to be no advantage to opening up the bilateral agreement with New Zealand. If we are sure that our previous interpretation of the Air Services Transit Agreement was wrong, the New Zealand suggestion for an exchange of notes provides a quick and satisfactory solution. If, on the other hand, we are not so sure, it would probably be best, for the time being, to avoid doing anything definitive which might compromise our claim for rights under the Air Services Transit Agreement.

J.A. IRWIN