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The federal government finally announced its new space strategy. It has been a long-time coming (16 years, to be exact) and has generated mixed reactions.
Much of the attention thus far has focused on the promised infusion of financial resources (to the tune of billions of taxpayer dollars) to support and stimulate the commercial development of space activities. Although financial promises are necessary, they are not sufficient. In order for Canada’s commercial space industry to truly take advantage of the projected US$1 trillion space economy, it requires a significant reformulation of the existing regulatory framework.
By virtue of the 1967 Outer Space Treaty, Canada is required to authorise and supervise all Canadian space activities, regardless of whether they are undertaken by public or private entities. Further, Canada is liable for any damage caused while carrying out such activities. These two international obligations make space law distinct from almost all other areas of Canadian and international law and, as a result, require that every space activity be licensed by the federal government.
Currently, only four types of activities can be licensed in Canada (radiocommunications, telecommunications, broadcasting and remote sensing) because Canada only has four explicit laws related to space. Most other countries have one law that oversees all space activities, creating a more efficient regulatory product. Without an improved legal framework to license non-traditional activities, a private company cannot proceed with its “innovative” activities. For example, the highly anticipated spaceport being developed by Maritime Launch Services cannot launch rockets without a license; the Canadian version of Moon Express (itself founded and headed by a Canadian but now based in the US) cannot extract lunar resources without a license; a habitat designed to sustain life in space or on Mars cannot be used without a license. Indeed, these are the very kinds of projects the newly-created (and funded) Lunar Exploration Accelerator Program (LEAP) would likely be supporting – but if they cannot get off the ground, what is the point?
This would not be the first time a Canadian commercial space activity would find itself in regulatory molasses. Most recently in March 2019, Planet finally received a provisional license to operate a ground station in Inuvik, Northwest Territories after a three-year application process – a process that is supposed to take six months. Similarly, questions related to whether Satellite-Automatic Identification Systems (S-AIS) fall within the definition of remote sensing have inhibited the growth of some companies and relegated them to regulatory purgatory for years. If Canada wants to take advantage of the space boom, it must provide legal clarity and certainty to commercial operators.
The new Canadian space strategy does envision a need to “create a modern regulatory framework”. However, unlike the financial pledges for scientific and technical development, the commitments to international cooperation and partnerships and an infusion of youthful energy into the astronaut program, the concept of regulatory reform is sparse on detail. It lacks any information on how the regulatory framework will be revised, who or what department will undertake such a revision, what kind of financial commitments will go into hiring and training new regulators, etc. This is unacceptable and counter-intuitive. If Canada wants to remain a leader in space, it must prioritise the reformulation of its regulatory framework.
Canada has a rich history of achievements, competencies and expertise in space. Aside from being the third country to have a satellite placed in orbit around the Earth, aside from building the legs that gently touched-down the first humans on the Moon and aside from developing the tools that literally built the International Space Station, Canada has a global reputation for excellence in robots, telecommunication and remote sensing. And yet, Canada still has so much to offer the space community.
The sole focus of Canada’s new space strategy is on the promised financial investments rather than the regulatory framework. Indeed, neither the Prime Minister’s nor the Canadian Space Agency’s press releases following the announcement of the new space strategy even mention that regulatory reform is one of its pillars. Although the unquestionable objective of the new space strategy is scientific development (and rightfully so), the reality is such that without a regulatory reformation there can be no meaningful scientific development. Indeed, the creation of a new regulatory regime is no easy task – but when it comes to space, nothing is.
Contributed by: Aram Daniel Kerkonian
Aram Daniel Kerkonian is an expert in space law and policy, a licensed Ontario lawyer and the Chief Legal Consultant of Ardaker Space Consultants. Aram is currently pursuing his doctorate in space law at McGill University’s Institute of Air and Space Law, focusing on Canada’s regulatory framework related to space.
