The report was delivered to Global Affairs Canada on February 17, 2017 and was deposited with the Acting Clerk of the House of Commons on April 5.
Dr. Ram S. Jakhu, Director of the Institute of Air and Space Law says he is not aware of any plans for a public announcement of the Review.
McGill University’s Institute of Air and Space Law is highly regarded nationally and internationally for its work. The Institute will hold its annual Manfred Lachs International Conference on Global Space Governance on May 5-6.
Considering the far reaching findings and recommendations within the report it would seem appropriate for Global Affairs Canada to make an announcement regarding it.
Industry has been clamoring for action in this particular regulatory environment for some time as they see it impeding business opportunities and innovation, and innovation is at the core of the governments plans to grow the economy.
SpaceQ had contacted Global Affairs Canada on February 27 by email for a comment after the Space 2.0 Round Table had concluded and which included a discussion on the Remote Sensing regulatory environment. A departmental spokesperson told SpaceQ in an email dated March 3 that “the Remote Sensing Space Systems Act (RSSSA) provides a licensing regime that ensures national security concerns are met, while balancing innovation and commercial interests of Canadian industry.”
The review disagrees with this assessment in its findings and states “although the objective of the Act is to balance the public interests of Canada with the private interests of commercial remote sensing operators, the Act leans more in favour of protecting Canadian national security interests at the expense of technological development and commercial interests.”
The spokesperson also said “the regular, independent, five-year review of RSSSA is currently underway and will be released this year. We do encourage all companies to engage during the early stages of planning, so that proposed space systems can be assessed in a timely manner.”
However, the Review had already been completed and submitted to Global Affairs Canada by the time spokesperson responded to SpaceQ which raises the question, did they not know that the Review had already been submitted?
The spokesperson further said that “we are working with government partners to review the broader space regulatory environment to ensure that it is best positioned to address national security and offer real opportunities to Canadian businesses.”
With the new Space Advisory Board beginning consultations with stakeholders this Friday it seems almost certain that industry representatives attending will raise this issue.
The other significant findings from the review are as follows:
- The Act does a commendable job of upholding Canada’s international obligations and allowing Canada to respond to changing international situations.
- The Act has had some difficulty keeping up with the pace of technological change over the past decade and will continue having difficulty in the future; thus far, the flexibility of the Act has allowed for continued regulation but may soon extend past its functional limits.
- While the Act succeeds, for the most part, in appropriately regulating Canadian remote sensing activities, many of the key definitions remain unclear; consequently, the Act is being used to regulate activities that are not, strictly speaking, remote sensing.
- The GAC office in charge of implementing the Act is underfunded and under-staffed; additional resources are required to maintain the proper implementation of the Act, especially as remote sensing space system applications increase.
- Aside from sophisticated entities, there is little awareness of the Act or its application; there should be more accessible information on the topic of remote sensing activities in Canada.
- There is little international harmonization on the topic of remote sensing activities; to best serve public and private interests, the Act should be harmonized with foreign and international rules and practices.
- There is no cost associated with applying for a licence under the Act; a licensing fee, on a cost-recovery basis, should be implemented to establish a standard level of service and help offset some of the licensing office’s costs.
The Need for a New General Outer Space Act
One of the more significant recommendations from the review is that Canada should consider a New General Outer Space Act.
The review states “when looking at space remote sensing activities in the context of overall space activities, it becomes obvious that the RSSSA is so far playing the role of Canada’s ‘general space law’ in addition to playing its intended role as Canada’s ‘remote sensing law’.”
“When considering the RSSSA as a whole, including its objectives, its methodology and its application, it becomes obvious that it is, in fact, undertaking two distinct responsibilities: first, as a regulator of remote sensing data and products and second, as a regulator of space systems and ground systems that happen to facilitate remote sensing activities. While it is more clear why the RSSSA is needed to regulate data, it is less clear why the RSSSA is needed to specifically regulate space hardware. As the only truly regulated space activity it may make sense to regulate application and hardware together, but the real problem emerges when new space activities develop and new pieces of legislation are enacted to regulate them, with each having their own regulations regarding application and hardware . Ensuring numerous pieces of legislation dealing with distinct space activities all align in terms of their hardware requirements seems unnecessarily onerous and ripe for confusion.”
The following recommendations from the review should be read in concert with the report.
The Impact of the RSSSA and Regulations on Technological Development – Recommendations
- Remote Sensing: Make the language of the Act more clear in regards to remote sensing, Earth observation and whether the latter falls within its purview. Alternatively, issue a Client Procedural Circular, in “layman’s terms”, to outline the intended interpretation of the Act’s various phrases.
- Raw Data and Remote Sensing Products: Consider whether removing the distinction between raw data and remote sensing products (so that both are treated as remote sensing products currently are permitted distribution unless specifically prohibited by the Minister) is feasible from a security standpoint.
- Transformation: Investigate whether there are more appropriate ways of addressing the seeming difficulties associated with the definition of “transform”. Similarly, utilize the authority granted under s 20(1)(a) to denote specific activities as either transforming or not transforming raw data.
- Licensing – Operations in Canada: If possible, streamline the licensing process for bent-pipe ground stations that do not store, process or distribute any data/products within Canada.
- Canadians Operating Outside Canada: Define the scope of “operate” in section 5 to determine who must be licensed for their activities related to the operation of a remote sensing space system or, alternatively, establish an exemption process for persons acting as employees or agents of remote sensing satellite operators from procuring a licence where reasonable to do so.
- Term of Licence: Amend the Act so that the default term of a licence is for the lifetime of the satellite system. Conversely, issue a Client Procedural Circular or similar document that communicates the official position of the regulator on this position.
- Application Processing Period for Licence: Consider implementing a deadline by which the Minister must provide a decision on an application for licence. Additionally, applicants seeking a remote sensing space system licence should begin involve the regulator as early as possible in the design and development stages of their operation.
- Interruptions of Service: Engage with licensees affected by a s 14 restriction order to determine whether alternative courses of action may reach the same objective without hindering commercial operations or whether there are ways to mitigate the harm caused to the commercial operator (such as compensation for loss of business).
- Priority Access: Ensure proper compensation for priority access (as made available in the Regulations) and clarify what kinds of representations may be made by an operator and what effect such representations would have on the priority access order.
Achieving the Objectives of the Act and Future Developments – Recommendations
- Achieving the RSSSA’s Objectives: Monitor remote sensing security strategy to ensure Canada’s security interests are maintained despite changing international players and evolving and divergent interests.
- Promoting Commercial Interests: Embed within the Act different ways of stimulating commercial interest so that the balance between security and technological development is regained.
- Responsibilities of Implementing Organization: Provide the regulatory office in charge of remote sensing with significantly more resources and more personnel.
- Organisation in Charge of Implementation: Establish an independent regulatory body that is tasked with overseeing the RSSSA from the perspective of reviewing applications, granting licences, conducting inspections, monitoring compliance, etc. The independent body should be provided with sufficient financial resources, technical expertise, a broad mandate to regulate (in consultation with other key departments and agencies) and should aim to facilitate commercial space remote sensing activities.
- Licensing Fee: Implement a reasonable fee in the application and licensing process that will establish a certain level of expected service and, if implemented on a cost-recovery basis, will alleviate the resource shortages currently associated with the regulator’s office.
- Consultations Regarding Licensing: Implement a formal process whereby the licensee and the regulator have an opportunity to discuss and review a licence (before and after it is issued), such that any disagreements regarding conditions or restrictions can be resolved or mitigated as best as possible without needed to undertake the licence amendment process.
- Awareness of the RSSSA: Engage community stakeholders by attending industry and academic conferences, publishing client information circulars and establishing an easily and intuitively-accessible online presence to explain clearly and candidly what kinds of activities fall within the scope of remote sensing as defined in the Act.
- Liability Indemnification: Include a provision that would allow Canada to be indemnified by a private entity for damages it is required to pay internationally as a result of a private entity’s space activity causing damage as well as a provision that requires all operators to procure insurance to cover the liability risks associated with space activity.
- New Technological Developments: Enter discussions that harmonize international rules related to the cloud so that anyone operating in the cloud, regardless of physical location, is subjected to the same regulations and/or operating procedures as attempting to unilaterally address the cloud without causing severe consequences to private industry is nearly impossible.
- International Harmonization: Engage foreign allies in high- and low-level discussions in an attempt to harmonize the various rules, procedures, standards, methods and strategies by which remote sensing operations are regulated.
- Need for a New General Outer Space Act: Enact a general Outer Space Act that would apply to new and emerging space activities as they become a reality.