Drones: A Canadian Legal and Regulatory Perspective – A Balanced Approach Between Safety and Innovation
The increased use and rapidly progressing technology of unmanned aerial vehicles, or UAVs, also known as drones1, make them a growing part of the aviation industry. As their popularity increases, however, so does the possibility of interference with traditional, manned aircraft. Thus, there are currently unique challenges in regulating the safe integration of UAVs into Canadian airspace.
UAVs are finding applications in various fields such as moviemaking, goods delivery, military, search and rescue, law-enforcement activities, agriculture, but domestic and recreational use of UAVs has significantly increased recently. As an example, for the 2015 Holidays, an estimated number of one million UAVs across North America were given as presents.2
Regulation in Canada
The federal government, through Transport Canada, is the responsible aeronautical authority in Canada. UAV use is regulated in Canada through the Canadian Aviation Regulations (CARs) and the Aeronautics Act. The Aeronautics Act applies to all aeronautical products, facilities and services, including airports. This Act enables the Federal Minister of Transport to enact the Canadian Aviation Regulations (CARs) which are overseen and enforced by Transport Canada, a department of the Federal Government.3 Transport Canada has general jurisdiction over the use of all types of UAVs.
Permission from Transport Canada
In Canada, UAVs are classified by weight and use. UAVs under 35kg that are flown for recreational purposes are classified as “Model Aircraft”.4 Flying them does not require permission from Transport Canada but they must be flown in a manner that is not, or is likely not to be, hazardous to aviation safety.5 As an example, they cannot be flown within nine (9) km from an airport, heliport or aerodrome and closer than 150 meters from people, animals, buildings, structures, or vehicles.6 When it comes to UAVs weighing more than 35kg, regardless of their use, or UAVs that are used for non-recreational purposes, regardless of their weight, a Special Flight Operation Certificate (SFOC) must be obtained from Transport Canada prior to operating them.7 Said UAVs are referred to as “Unmanned Air Vehicles” under the CARs.8 The objective of requiring an SFOC is to ensure that the proposed use and operation of the UAV is safe. In evaluating SFOC applications, Transport Canada will take into account the nature, complexity and level of risk of the proposed UAVs operations as well as the operator’s UAV training and/or aviation experience.9
In two years, from 2012 to 2014, the number of SFOCs issued by Transport Canada increased by 485% as Transport Canada issued 1,672 SFOCs for UAVs in 2014, compared to only 345 in 2012.10 Some exemptions to the SFOC requirement apply, however, since November 2014, in an effort to simplify the process and reduce wait times in obtaining a SFOC. These exemptions are valid until December 21, 2016,11 as they are meant to be a temporary solution while Transport Canada is working on a new set of regulations that is supposed to enter into force later in 2016.12 These two exemptions are the following:
- Non-recreational UAVs with a maximum take-off weight not exceeding 2kg and operated within a visual line-of-sight
- Non-recreational UAVs with a maximum take-off weight exceeding 2kg but not exceeding 25kg with a maximum calibrated airspeed of 87 knots or less and operated within a visual line-of-sight13; and
The UAV operators for each of the above-mentioned category must meet the exemption conditions in order to be exempt from the SFOC requirement. Transport Canada established a large set of conditions that are related to flight operations, pilot training and UAV system conditions. The conditions for the non-recreational UAVs with a maximum take-off weight exceeding 2kg but not exceeding 25kg are more stringent than the ones for the non-recreational UAVs not exceeding 2kg when it comes to pilot training and UAV operation, amongst others. Any UAV operator under said exemption must also notify Transport Canada with (i) contact information, (ii) UAV model, (iii) description of operations, (iv) geographical boundaries of operations and (v) specific aviation occurrences such as injuries to persons, collision with an aircraft or other incident.
Recently, Transport Canada launched a new campaign that is designed to educate Canadians on safe drone use to ensure they are compliant with relevant laws.14
Transport Canada may issue fines of up to $5,000 for an individual and $25,000 for a company to a UAV operator flying without a SFOC when required and up to $3,000 for an individual and $15,000 for a company when the operator does not comply with the requirements of the SFOC. An operator may face criminal charges and substantial fines when operating a UAV too close to an aircraft or an airport.
Regulation of UAVs outside Canada
Canada and United States both committed to share with each other experiences on regulation related to UAVs through the Regulatory Cooperation Council with the aim of aligning regulatory approaches, to the extent possible. In February 2015, the Department of Transportation’s Federal Aviation Administration issued a proposed set of more permissive regulations entitled “Operation and Certification of Small Unmanned Aircraft Systems”15 in which small UAVs weighing less than 55 pounds, or just under 25kg, and conducting non-recreational or non-hobby operations would be allowed in the aviation system under certain conditions. Such conditions are similar to the SFOC exemption conditions and namely include daylight flights, visual-line-of-sight operations, height restrictions, operator certification, aircraft registration and marking, maximum airspeed of 100 mph, maximum altitude of 500 feet, etc.16 It is necessary to note that the current UAV rules remain in place until FAA adopts the final regulation in late 2016.
That being said, the United States recently took a stricter approach than Canada regarding UAVs used for recreational purposes. In fact, as of December 21, 2015, the FAA’s Small Unmanned Aircraft System Registry requires all persons aged 13 or older, who operate a UAV for hobby or recreational purposes, to register with the FAA all UAVs weighing between 0.55 and 55 pounds. Upon completion of registration and payment of a $5 fee, a Certificate of Aircraft Registration will be sent to the operator which includes a registration number that must be marked on the UAV. If strictly used for hobby or recreational purposes, owners will only have to register once and use the same identification number on all of their UAVs. This new registry system follows Congress’ confirmation in 2012 that UAVs, including those for hobby and recreational purposes, are consistent with the statutory definition of an aircraft and must consequently be registered with the FAA prior to being operated.17 UAV for non-recreational use is still banned unless the operator has been granted an exemption from the FAA. The non-recreational UAV operators must register each UAV in their fleet individually and cannot use the new online registration system, but must instead refer to the existing paper-based system.18
In the European Union, the European Aviation Safety Agency (EASA) is responsible for UAVs19 over 150kg and the Member States are responsible for UAVs under this weight. In consequence, several Member States have their own regulations for UAVs up to 150kg.
This divide and incoherency between European and national regulations creates numerous rules that differ across the European Union, thus hampering the development of a unified European market.20 Part of the challenge lies in the fact that adequate policies permitting UAV operations are missing in Member States. Belgium, for example, has no regulatory framework that allows commercial UAV operations.21 The EASA has therefore developed a harmonised European policy framework for the integration of UAVs into civil airspace, facilitating the development of a competitive pan-European market.
Considering the broad range of operations and types of UAVs, the EASA proposed three categories of operation: open, specific and certified; along with their associated regulatory outline. The open operation category applies to the very low risk operations and presents a set of limitations for operating UAVs without presenting an imposing regulatory burden for operators. It is intended to allow simple operations as well as to enable enterprises to gain experience in the field. The risk for other aircraft is mitigated by their separation from UAVs, as the regulation requires that they must fly at an altitude not exceeding 150m above ground level as well as outside of specified reserved areas such as airports.22 There are no requirements for an authorisation by an Aviation Authority nor is there a need for a licence. The specific operation category will be required where an operation poses more serious aviation risks or relates to the sharing of airspace.23 The operator is required to perform a risk assessment that will lead to the issuance of an authorisation with specific limitations tailored to the operation. Finally, the certified operations apply where there are higher aviation risks, similar to those of normal manned aviation operations. A licence, training and maintenance approvals are some of the many requirements imposed upon operators in this category.24
Furthermore, some enabling technologies required to allow for the safe integration of UAV into the European airspace are not yet available. EASA therefore suggests in its report that research and development efforts be made to validate the safe use of these technologies. Such research is essential to insure the competitiveness of the European Union in the industry, as it is estimated that in the next 10 years, UAVs will be worth 10% of the aviation market, which represents €15 billion per year.25
International Civil Aviation Organization (ICAO)
ICAO recently published the Manual on Remotely Piloted Aircraft Systems (RPAS).26 This Manual provides an international regulatory framework through Standards and Recommended Practices that will help Canada and other countries to develop a consistent approach in their ongoing UAV regulatory developments.
The near future will inevitably include drones. There are already 1,700 different types of drones that are currently produced by some 500 manufacturers worldwide27 for either recreational or non-recreational purposes to respond to the growing demand. In the United States, Google and Amazon are proposing changes to low-altitude airspace to enable widespread use of UAVs, mostly for package delivery.
There has been a lot of movement on this matter over the last year in Canada. Experts are not, however, on the same page regarding the current state of UAV regulation in Canada as Canada’s flexible and permissive approach, especially for recreational UAVs,28 is either seen as innovative and progressive making Canada a leader in the drone industry or very risky in terms of security and safety.29 Transport Canada is actively rethinking its UAV regulations and developing new regulatory policies. The proposed regulatory framework30 contains several changes, including new flight rules, aircraft marking and registration requirements, knowledge testing, minimum age limits, and pilot permits for certain UAV operators, which are, to a certain extent, inspired from the existing regulations for manned aircraft. As a result, the era where Canada was seen as permissive regarding UAV regulation is now moving towards a more balanced approach between safety and innovation.
Our firm can assist in a large spectrum of matters related to drone operations including regulatory aspects and operating licenses, privacy matters, insurance associated to drone-related risk, liability related to drone collision, intellectual property and patents, etc.
1 Other common terms used for UAVs: “Unmanned Air Systems”, “remotely piloted aircraft system”, “model aircraft” and “remote control aircraft”. Furthermore, Unmanned Air Vehicle (UAV) is the only term that currently has a legal basis in the CARs, for the purpose of all Transport Canada issued Canadian Aviation Documents. Such term shall be utilized until such time as the terminology is formally amended in the CARs to harmonize with the International Civil Aviation Organization (ICAO) who distinguish between Remotely Piloted Aircraft Systems (RPAS) and Unmanned Aircraft Systems (UAS) – See Transport Canada, Staff Instruction SI 623-001- Review and Processing of an Application for a Special Flight Operations Certificate for the Operation of an Unmanned Air Vehicle (UAV) system.
2 Kim Brunhuber, “Santa Expected to Deliver 1 Million Drones this Christmas”, CBC News (17 December 2015), online: <www.cbc.ca/news/technology/drones-christmas-faa-1.3368600>.
3 The Aeronautics Act sets out responsibilities of the Minister of Transport for civil aviation and the Minister of Defence for military aviation, and provides for the making of regulations and the enforcement of aeronautics law.
4 Canadian Aviation Regulations, SOR/96-433, s. 101.01. “model aircraft” means an aircraft, the total weight of which does not exceed 35 kg (77.2 pounds), that is mechanically driven or launched into flight for recreational purposes and that is not designed to carry persons or other living creatures; (modèle réduit d’aéronef).
5 Ibid, s. 602.45.
6 Tips from Transport Canada to flying safely : Fly during daylight and in good weather; Always keep your aircraft in sight; Respect the privacy of others; Don’t fly close to airports, in populated areas, near moving vehicles, or higher than 90 metres.
7 Transport Canada, Staff Instruction SI 623-001 – Review and Processing of an Application for a Special Flight Operations Certificate for the Operation of an Unmanned Air Vehicle (UAV) System.
8 Canadian Aviation Regulations, supra note 4 at, s. 101.01. “unmanned air vehicle” means a power-driven aircraft, other than a model aircraft, that is designed to fly without a human operator on board; (véhicule aérien non habité).
9 Certificate applicants who hold a valid SFOC, as of the date this Transport Canada Staff Instruction 623-001 is published (19 November 2014), may continue operations under that SFOC until that SFOC expires. When renewing said SFOC additional information may be required to ensure applicants meet the new requirements.
10 Transport Canada, “Notice of Proposed Amendment: Unmanned Air Vehicles” by Canadian Aviation Regulations Advisory Council, (Ottawa: Transport Canada, 18 May 2015), online: <wwwapps.tc.gc.ca/Saf-Sec-Sur/2/NPA-APM/actr.aspx?id=17&aType=1&lang=eng>.
11 This exemption is in effect until the earliest of the following:
- December 21, 2016 at 23:59 (EST);
- the date on which any one of the conditions set out in this exemption is breached;
- the date on which this exemption is cancelled in writing by the Minister, where he is of the opinion that the exemption is no longer in the public interest, or that it is likely to adversely affect aviation safety.
12 Transport Canada, supra note 10.
13 “Visual line-of-sight (VLOS)” means unaided (corrective lenses and/or sunglasses exempted) visual contact with the UAV sufficient to be able to maintain operational control of the aircraft, know its location, and be able to scan the airspace in which it is operating to decisively see and avoid other air traffic or objects.
14 Transport Canada, “Do’s and Dont’s for flying your drone safely and legally”, Catalogue No T86-6/2014E-PDF (Ottawa: Transport Canada).
15 The term used by the FAA is “unmanned aircraft system” or “UAS”. For the definition, online: <www.faa.gov/uas>.
16 Federal Aviation Agency, Press Release, “DOT and FAA Propose New Rules for Small Unmanned Aircraft Systems” (February 15, 2015), online: <www.faa.gov/news/press_releases/news_story.cfm?newsld=18295>.
17 William V. O’Connor, Christopher J. Carr, Zane O. Gresham, Joseph R. Palmore, and Joanna L. Simon, “May State and Local Governments Control Low-Flying Drones?” Law 360 (2 December 2014), online: <www.law360.com/articles/601469/may-state-and-local-gov-ts-control-low-flying-drones>.
18 The FAA planned to make the transition to the web-based tool for UAVs for commercial or business purposes by March 31, 2016. As of today (April 11, 2016), it does not seem to be available. See website Know Before You Fly, Register Your Drone, http://knowbeforeyoufly.org.
19 The term used by the EASA is “remotely piloted aircraft system” or “RPAS”.
20 Communication from the Commission to the European Parliament and the Council: A New Era for Aviation: Opening the Aviation Market to the Civil Use of Remotely Piloted Aircraft Systems in a Safe and Sustainable Manner, COM(2014) 207 Final (April 2014), p. 89.
21 House of Lords European Union Committee, 7th Report of Session 2014-2015, Civilian Use of Drones in the EU, London, 2015, p. 20.
22 European Aviation Safety Agency, Concept of Operations for Drones: A Risk Based Approach to Regulation of Unmanned Aircraft, Cologne, 2015, p.4.
24 Ibid at 5.
25 Commission Press Release, MEMO/14/259 (8 April 2014), p. 1.
26 International Civil Aviation Organization, Manual on Remotely Piloted Aircraft Systems (Doc 10019), 2015.
27 Abdul Montaqim, “Commercial UAVs: You can drone, but you can’t hide”, Robotics & Automation News (11 July 2015).
28 See above, no permission is needed for recreational UAVs weighing less than 35kg.
29 ”Les experts ne s’entendent pas sur l’approche du Canada en matière de drones”, L’actualité (16 August 2015), online : <https://lactualite.com/actualites/quebec-canada/les-experts-ne-sentendent-pas-sur-lapproche-du-canada-en-matiere-de-drones>.
30 Transport Canada, supra note 10.