Introduction

Canada’s history as a spacefaring nation began in 1962 with the launch of Alouette 1, making it the third country to design and build its own satellite. This milestone marked the start of Canada’s significant contributions to space exploration and technology, which have included the robotic arms used on the Space Shuttle and the International Space Station. The nation’s expertise in satellite communications, space robotics, and remote sensing has made it a key partner in international space missions, solidifying its reputation as a pioneer in space exploration.

That said, the law often engages with technological developments reactively rather than proactively, adjusting regulations and creating new frameworks after innovations have already begun to impact society. Canadian space law exemplifies this phenomenon. While the Canadian satellite communications industry is mature and highly regulated, other aspects of space utilisation, such as launches of spacecraft and human space exploration are relatively new in Canada. Consequently, the regulatory framework applicable to such activities remains underdeveloped and, as further discussed below, stakeholders may turn to the laws and regulations applicable on Earth for guidance.

In this vein, the most concrete recent developments in Canadian space law pertain to satellite telecommunications and much speculation remains in terms of issues such as the protection of privacy and intellectual property in space. An exception, however, may be the management of the risk associated with space debris, which Canada has addressed proactively through various mechanisms. This article will discuss these issues in turn in the following sections, concluding with the outlook for developments in the coming years.

Regulation of Satellite Communications

Background

The ownership and operation of space and Earth stations, as well as the provision of satellite transmission services in Canada, are regulated by the Minister of Innovation, Science and Industry Canada (the “Minister”) and the Canadian Radio-television and Telecommunications Commission (CRTC). Canada also has a separate licensing framework for remote sensing space systems, which is administered by a section of Global Affairs Canada.

The Minister is responsible for issuing the necessary authorisations under the Radiocommunication Act for the use of radio frequency spectrum by satellites and Earth stations in Canada. The CRTC is responsible for regulating the provision of telecommunications services in Canada by telecommunications service providers, including satellite service providers, under the Telecommunications Act.

Radio frequency authorisations for the ownership and operation of satellite and Earth station facilities

In 2023, the Minister implemented a number of amendments to the licensing regime for Canadian-licensed satellites and Earth stations, including the introduction of generic Earth station spectrum licences.

All satellites that are under the direction and control of a Canadian corporation must hold a spectrum licence issued by the Minister authorising the use of the frequencies at an orbital location (in the case of geostationary orbit (GSO) satellites) or in accordance with other orbital parameters (in the case of non-geostationary orbit (NGSO) satellites). Licence holders do not need to be owned or controlled by Canadians, but corporate licence holders must be incorporated in Canada. Space station spectrum licences are issued on a first-come, first-served basis. In order to obtain a licence, a licence applicant must, among other things, demonstrate that:

• the satellite facilities will comply with Canadian spectrum allocation and utilisation policies and spectrum efficiency and Canadian coverage requirements;
• it will have the ability to perform certain direction and control requirements from within Canada; and
• it has a detailed orbital debris plan that satisfies international recommendations and guidelines.

The Minister has also established standard conditions of satellite spectrum licences. These conditions include deployment requirements, as well as ongoing obligations to comply with Canadian laws and spectrum policies, co-ordination obligations, payment of licensing fees and, in some cases, public benefit obligations. Fees are payable annually for a satellite spectrum licence, based on the band and the amount of spectrum that is licensed.

Satellites that are licensed by another country must obtain “market access” in order to communicate with authorised Canadian Earth stations. Market access will generally be granted to satellites licensed by WTO member countries if the frequency utilisation complies with Canadian spectrum allocation and utilisation policies, and Canadian co-ordination requirements have been met. There are currently no fees for market access.

Earth stations are now also authorised by means of a spectrum licence. The Minister issues site-specific spectrum licences for Earth stations operating in certain bands or that support certain activities, such as satellite feeder and telemetry, tracking and control links. The Minister also issues generic spectrum licences for user terminals, including Earth stations in motion, operating in certain frequencies. As with space stations, a corporation must be incorporated in Canada to hold an Earth station licence, but there are no Canadian ownership or control requirements. Fees are payable annually, based on the spectrum band and amount of spectrum authorised by the spectrum licence. Standard Earth station conditions of licence have been established by the Minister as well.

CRTC regulation

Satellite and Earth station operators that provide telecommunications services in Canada are subject to regulation by the CRTC. However, because the Commission has forborne from regulation of non-dominant carriers and has limited authority over resellers of telecommunication services, satellite services are not rate-regulated and are subject to light-touch regulation by the CRTC.

Licensing of remote sensing space systems

A separate licensing framework has been established under the Remote Sensing Space Systems Act, which was passed in 2006, for the operation in Canada of a remote sensing space system or the operation of such a system outside of Canada by a corporation incorporated in Canada. Licence applications for these operations must satisfy factors relating to national security and defence, international relations, and orbital debris. Licensed operators are subject to licence conditions that address control of the system, access to and control of data collected by the system, communication of non-Canadian data, use of cryptography and system disposal.

Privacy Law in Space

The legal framework governing the protection of privacy in outer space remains unclear. While terrestrial privacy laws such as the EU General Data Protection Regulation (GDPR) and Canada’s federal privacy legislation, the Personal Information Protection and Electronic Documents Act (PIPEDA), provide some framework for data protection, their applicability in space is uncertain. This ambiguity poses significant challenges for ensuring privacy and data security for both individuals on Earth and those venturing into space.

The distinction between airspace and outer space is therefore crucial when determining applicable privacy laws. Airspace is under the territorial sovereignty of the underlying state, while outer space, beginning at an altitude of 100 km, is not subject to any nation’s sovereignty. Within airspace, both the GDPR and Canadian privacy laws apply, as this region falls within the sovereign territory.

For example, the GDPR applies, if an organisation has an establishment in the EU, regardless of whether the processing takes place in the EU or not. One might argue that the GDPR applies even in space, given that it applies to the processing of personal data regardless of where processing occurs. However, this must be read in the context of the GDPR as a whole, which only contemplates the transfer of personal data to third countries and to international organisations.

Similarly, PIPEDA applies to organisations that collect, use, or disclose personal information in the course of commercial activities in Canada or with a real and substantial connection to Canada. Likewise, the scope of provincial privacy legislation such as Quebec’s Act respecting the protection of personal information in the private sector is framed in terms of an “enterprise” collecting, holding, using or communicating personal information in the course of business activities. This legislation may arguably apply to organisations that engage in such activities in space, though to our knowledge, there is no case law to support this position. 

Given this legal uncertainty, the OECD Guidelines Governing the Protection of Privacy and Transborder Flows of Personal Data provide principles that are reflected in existing relevant legislation and may serve as a reference.

Regardless of applicable laws, privacy challenges in outer space are significant. These include the following:

• Transparency – Individuals on Earth must be informed if their personal information is stored on a satellite. This raises questions about the location and transfer of personal information.
• Consent – For astronauts and space tourists, obtaining free consent can be problematic. Whether it be space tourists or astronauts, participation in space activities or clinical trials on the International Space Station (ISS) may necessitate agreeing to share personal information, thus complicating the notion of voluntary consent.
• Anonymisation – Anonymising data in outer space is nearly impossible due to the limited number of individuals, making it easy to identify personal information.
• Cybersecurity – The cybersecurity of personal information is a critical issue. Recent cyber incidents highlight the vulnerabilities of satellites and underscore the severe consequences of attacks involving space assets.

In summary, while terrestrial privacy laws provide some guidance, the unique conditions of outer space pose significant challenges that require careful consideration and potentially new regulatory approaches. A first step has been taken in this direction: a European Space Law legislative proposal is expected in summer 2024 and will focus on cybersecurity by design, in particular by providing consistent requirements for space safety, resilience, security and sustainability across the EU. Canadian regulators could draw inspiration from the European project.

Intellectual Property and Research and Development

The extent to which national intellectual property laws, including those of Canada, apply to outer space remains unclear, though it may depend on bilateral or multilateral agreements as further described below.

Under the 1967 United Nations Outer Space Treaty, objects (and associated personnel) launched into space and registered in Canada are subject to Canadian jurisdiction and control. Under Articles I and II of the Convention on Registration of Objects Launched into Outer Space a state must register a space object on its registry if the object is launched from its territory, or it procures the launch of the object. Approximately 85 in-orbit space objects currently appear on Canada’s registry with early registrations pertaining to telecommunications and more recent registrations being focused on Earth observation. With the commercial spaceport in Canso, Nova Scotia, set to become operational in 2025, this number may increase. Objects registered in Canada could thus potentially fall under Canadian intellectual property laws. However, dispute resolution under the Outer Space Treaty occurs between member states and relevant international organisations, with no explicit recourse to civil courts.

International treaties related to the International Space Station (ISS) did not extend Canadian intellectual property laws to outer space, as Canada has not contributed a specific module to the ISS. Instead, the laws of the country that contributed it apply to each module.

The Artemis Accords, signed by Canada in 2020, govern the Moon exploration programme led by the United States. These accords promote the open sharing of research data but do not include substantive provisions on intellectual property protection, leaving this issue to future bilateral agreements.

If a space object is launched from Canada, systems used in the launch could potentially infringe on patents. The importation of objects related to a space launch into Canada could also trigger patent rights infringement, as could mere possession of such objects under certain circumstances, as indicated by the Monsanto v Schmeiser case. Section 23 of the Canadian Patent Act provides an exception for the temporary or accidental entry of foreign inventions into Canada, though its applicability to space objects remains unclear.

Canadian and foreign entities should therefore secure intellectual property rights in countries with launch sites or active space programmes to maximise their protection and value.

Research and Development

Research and development (R&D) in space exploration in Canada is significantly driven by the Canadian Space Agency (CSA) through grants, contributions, and contracts. Funding opportunities for 2022–2027 target projects related to the lunar gateway, the Artemis project, planetary exploration, and space astronomy. In early 2024, the CSA announced the Space Technology Development Program, with a budget of CAD15 million to strengthen basic R&D into space technologies. Additionally, the 2024 budget included the Lunar Exploration Accelerator Program (LEAP), aimed at technological developments tied to the future lunar economy.

The National Research Council of Canada (NRC) also funds space-related R&D and, in 2023, signed a memorandum of understanding with the CSA to enhance co-operation. This collaboration was further supported by the creation of the National Space Council in 2024 to co-ordinate efforts across federal departments.

The CSA periodically issues challenges to the space development community, such as the deep space food challenge launched in 2021 in co-operation with NASA to develop sustainable food production systems for outer space. In early 2024, five Canadian companies were selected to build prototypes for a Connected Care Medical Module for space healthcare.

Canada’s contributions to the Artemis project include the development of a next-generation robotic arm for the lunar gateway, by MDA, a leading Canadian space technology company. The CSA also continues to invest in Earth-orbiting satellite R&D, leveraging Canadian private sector expertise. In late 2023, the CSA announced a CAD1 billion investment over 15 years in the Radarsat+ initiative to gather information about Earth’s oceans, land, climate, and populated areas.

Management of Space Debris

With the exception of the Remote Sensing Space Systems Act, Canada has largely taken a “soft law” approach to managing space debris. Space debris refers to defunct satellites, spent rocket stages, and other fragments from the collisions or disintegration of space objects that orbit the Earth. It poses a significant concern because these pieces of debris can damage functioning satellites, space stations, and other critical infrastructure, potentially leading to cascading collisions and further increasing the amount of debris in orbit.

The Canadian Remote Sensing Space Systems Act, along with its regulations, mandates that operators of remote sensing space systems in Canada obtain a licence that includes a comprehensive satellite disposal plan. This plan must address the protection of the environment, public health, and safety, and comply with specific space debris mitigation standards. These standards require detailed information on the proposed disposal method, operation duration, risk assessments, debris projections, and hazardous materials.

In addition, the licensing regime for Canadian space stations aims to mitigate the risks associated with debris from this class of spacecraft. Licence applicants must submit a Space Debris Mitigation Plan. For geostationary satellites, the plan must comply with Recommendation ITU-R Section 1003-2, Environmental protection for the geostationary satellite orbit, while for non-geostationary satellites, the plan must adhere to the guidelines issued by the Inter-Agency Space Debris Coordination Committee (IADC). Compliance with these requirements is also a condition of space station spectrum licences

Finally, the CSA adopted the IADC Space Debris Mitigation Guidelines in 2012 to mitigate space debris generated from its projects, missions, and activities. These guidelines are applied in the planning, design, construction, operation, and end-of-life phases of CSA projects, ensuring a comprehensive Space Debris Mitigation Plan is in place. In addition CSA satellites are licensed by Innovation, Science and Economic Development Canada and must comply with the conditions of the licence.

Outlook for Future Developments

Per the different topics covered in this article, it is clear that policymakers and governments will have to monitor commercial developments in space activities. Developing and furthering regulatory framework and international treaties will require a co-operative effort from the various stakeholders on a nationwide and international level.

To ensure it keeps pace, the government of Canada conducted a consultation process between 31 January and 4 April 2023 to seek views from stakeholders on these matters. Amongst the key themes addressed, it is not surprising that the consultation highlighted (i) the need to modernise the regulatory framework for space in light of emerging opportunities and (ii) the need to focus on supporting industry and encouraging innovation, aligning with international partners, prioritising sustainability, mitigating risks, striking the right balance on security, and streamlining administrative processes.

While the consultation was open to all Canadians, the government specifically sought input from stakeholders in specific space activities such as “Canadian businesses, especially those who are affected by Canadian space regulations or who are engaged in emerging space activities or space launch”. As alluded to above, the government of Canada has indicated that it intends to develop a regulatory framework for the authorisation and operation of satellite launch facilities in Canada. Presently, these facilities are regulated under federal aeronautical regulation and it may take a couple of years before a specialised regulatory framework is promulgated. With the commercial spaceport in Canso, Nova Scotia, set to become operational in 2025, there is a clear need, and intent, to develop a Canadian framework for space launching.

In a similar vein, Canada has not finalised the regulatory framework for the new satellite-to-mobile phone services that have been announced. Testing has been permitted under the Minister’s developmental licensing framework. The Minister has initiated a consultation to develop rules for satellite use of terrestrial mobile frequencies to support these new services. In this context, there will likely be calls to implement best practices and a establish a clear regulatory framework to ensure that Canadians benefit from the expanded, near ubiquitous coverage that these services will support.

On a final note, it is clear that space activities represent promising business opportunities. We look forward to growth in specific space activities such as waste management and clean-up of space debris, remote sensing, satellite constellations, space tourism (suborbital or orbital flights), satellite services (including maintenance and disposal), space resource utilisation, and in-orbit servicing, assembly, and manufacturing. The space industry allows for a wide range of activities and partnerships for which companies and professionals can use their expertise to develop and explore as humanity continues to venture into space. Legal professionals will be called to provide advice in connection with the growth of commercial space activities, to provide tailored commercial agreements and to support the development of regulatory frameworks, and ultimately compliance with such frameworks.