Transport Canada’s New Rules for Drones

On January 9, 2019, Canada’s Minister of Transport unveiled a new regulatory framework for the operation of drones (also referred to as Remotely Piloted Aircraft Systems (“RPAS”). These new rules will come into effect on June 1, 2019, and represent a dramatic re-fashioning of the way RPAS with a mass of up to 25 kg are regulated in Canada; larger drones will continue to be governed by rules similar to those currently in force.

In Canada, air transportation falls under the federal legislative power, with the operation of RPAS governed by the Canadian Aviation Regulations (“CAR”) adopted under the Aeronautics Act, as well as standards set out by Transport Canada (“TC”). The change recently announced by TC involves the adoption of a new Part IX of the CAR focusing primarily on streamlining requirements for businesses operating small drones, and reducing the risks to other aviation activities and to persons near RPAS operations. Going forward, line-of-sight operations of drones with a mass of up to 25 kg, at least 5.5 km from an airport and at least 5 metres horizontally from any person, will be regulated more simply.

1. Current Rules

The CAR currently provide for two categories of drone operations: recreational and commercial. The requirements for drone operations in either category further vary according to the mass of the drone. For instance, recreational operation of an RPAS under 35 kg does not require any type of licence or permit, whereas commercial operation of the same device having the same characteristics requires that the pilot carry a Special Flight Operations Certificate (“SFOC”). A single SFOC may in rare cases be valid throughout Canada and to a company’s operations as a whole, but SFOCs are more commonly issued in respect of a single flight or series of flights. Since TC’s internal research indicates that the average time spent on SFOC applications is 27.3 hours, with a 20-day processing period, TC determined that the current framework prevents innovation and economic growth in the drone industry.

2. New Regulatory Framework

For drones up to 25 kg, the new Part IX of the CAR simplifies the regulation of line-of-sight operations conducted away from people and airports. First, all RPAS pilots will now be required to carry a pilot licence issued by TC. Second, rather than dividing operations on the basis of their “recreational” or “commercial” purpose, the CAR will instead provide for “basic” and “advanced” operations of small drones, differentiating RPAS first according to mass and then according to their distance from people and airports. Third, drones themselves are now subject to mandatory registration with TC.

(a) Pilot Licences

Under the new rules, all pilots operating drones must obtain and carry a pilot licence issued by TC. Persons operating a drone without a licenced pilot face fines up to CDN$5,000 for individuals and CDN$25,000 for corporations. Pilots will also be required to keep records of each flight, as well as maintenance and modifications carried out on their RPAS. Pilots must make this information accessible for the period specified by the CAR, varying between 12 and 24 months.

(b) Basic and Advanced Operations

Going forward, the operation of drones with a mass between 250 g and 25 kg will fall into the new “basic” or “advanced” categories. Basic operations will require a knowledge test, whereas advanced operations will require both a knowledge test and a flight review whereby pilots physically demonstrate their ability to operate their RPAS and describe the necessary steps and procedures to have a safe flight. In order to qualify as basic operations, a drone must be flown (i) in uncontrolled airspace and (ii) more than 30 metres from any person. If either of these conditions is not met, operations will automatically be considered as advanced. For advanced operations, pilots must always remain more than 5 metres away from people (measured horizontally at any altitude), and three nautical miles (5.5km) from an airport. In order for an RPAS to qualify for advanced operations, either the manufacturer of the drone must provide to TC an RPAS safety assurance declaration whereby the manufacturer confirms that the drone meets TC’s technical requirements, or the drone must be included in a list of compliant RPAS published by TC. If this is not the case, then the RPAS operator will be restricted to basic operations.

Any operations of smaller drones not falling under the CAR definitions of “basic” or “advanced” operations will require a SFOC – this is also the case for the operation of any drone with a mass greater than 25 kg or for operation of a drone that is not within visual line of sight of the pilot, no matter the circumstances.

In addition, operating any drone “in such a reckless or negligent manner as to endanger or be likely to endanger the life or property of any person” constitutes a criminal offence, broadening the scope of the current CAR criminal provision in respect of drone operations.

Another notable regulatory change is that the CAR will no longer provide for speed limits or for mandatory civil liability insurance, with pilots rather assuming a general duty to operate  drones carefully in order not to endanger aviation safety or the safety of any person.

(c) RPAS Registration

Drone registration is another feature of the new framework and applies to all basic and advanced operations of drones with a mass up to 25 kg. Once the RPAS is registered, TC will issue a certificate of registration to its owner, which certificate must be easily accessible to the pilot during operations. For operations requiring a SFOC, the current requirements will remain the same, and pilots will be required to submit all relevant information regarding the operation to be carried out, including detailed information on the RPAS.

(d) Drone Management Portal

In order to reduce processing time, TC has indicated that knowledge tests, drone pilot licences, advanced operation certificates and SFOCs will be processed via a new platform created by TC, the Drone Management Portal. Operators may also complete via this portal their drone registration and required reports in respect of any flight incidents that occur during operations.

3. Application

What do these changes in operational requirements mean for current operators of drones in Canada? Let’s look at three examples.

  • Example 1: a recreational RPAS operator whose drone has a mass of 26 kg and is currently not required to obtain SFOCs:
    • This operator will in the future be above the threshold for both basic and advanced operations, and will require SFOCs to operate drones.
  • Example 2: a company operates RPAS with a mass of less than 1 kg over an urban area and is currently required to obtain SFOCs.
    • To the extent that the drone will be flown within 5 m of a person (measured horizontally, at any altitude), this operator must continue to obtain SFOCs in order to operate drones.
  • Example 3: a company remotely operates drones over farmland, away from both people and any airport, and each RPAS has a mass of 1 kg; currently, this operator must obtain SFOCs to operate its drones.
    • If the operation were within visual line-of-sight, this operator would now be conducting “basic” operations. Since the operation is remote, SFOCs will still be required.

These examples are of course incomplete and are for informational purposes only. Our Transportation and Logistics group is available to assist companies in auditing their use of drones and to understand what their future needs might be.

4. First Impressions

The new incarnation of the CAR drone framework represents a substantial change in the way RPAS are regulated in Canada. This new regime requires for the first time pilot licences and the registration of drones, while streamlining operational requirements and eliminating the need for SFOCs in respect of some operations involving drones up to 25 kg.

Companies operating drones in Canada will want to get out in front of these changes to the CAR. In particular, operators whose regulatory burden will no longer include SFOCs should ensure that their pilots are licenced and have passed knowledge tests and flight reviews (as applicable) before June 1, 2019, in order to avoid any interruptions in their operations. As described above, many commercial RPAS operators, whether due to their remote operations or proximity to people, will continue to apply for SFOCs, but the new TC portal should accelerate that process.

On the whole, this updated framework should encourage businesses to operate drones and position Canada as an attractive arena for innovation in the area of autonomous air transportation.

McCarthy Tétrault’s Transportation and Logistics group has extensive experience assisting Canadian and U.S. clients with issues regarding RPAS operational compliance and with regulatory and privacy-related issues around drones more generally. For more information, please contact David F. Blair or Brian Lipson.

 

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