The Space Law Review: Canada
Introduction to the national legal, regulatory and policy framework
Canada has a long history of involvement in space research, the development and manufacture of space and ground station components, and the commercial use of satellites to support telecommunications and broadcasting services.
The Canadian Space Agency (CSA), which was established in 1989, is responsible for advancing knowledge of space and ensuring that space science and technology provide social and economic benefits for Canadians.2 The CSA coordinates space activities that are funded by the government of Canada, including the Canadarm, and astronaut and other space research programmes, and Canada's participation in Radarsat, a remote sensing Earth observation satellite programme.3
Given its land mass and the remoteness and low population density of many parts of the country, Canada has had a long-standing interest in using satellites to support telecommunications and broadcasting throughout all regions of the country, including the north. The Canadian government incorporated Telesat Canada in 1969 with a mission of owning and exploiting Canadian communications satellites for the provision of commercial services. With Telesat Canada's launch of the Anik A1 satellite in 1972, Canada became the first country with a domestic communications satellite in geostationary orbit. Until 1998, Telesat Canada held a monopoly over the provision of domestic and Canada–United States satellite communications services. That monopoly was gradually unwound between 1998 and 2000 in accordance with specific commitments made by Canada with respect to telecommunications services pursuant to the World Trade Organization (WTO) General Agreement on Trade in Services (GATS).
Canada is a founding member of the International Telecommunications Satellite Organization and the International Mobile Satellite Organization, and has ratified the following United Nations space treaties:
- the Treaty on Principles Governing Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies 1967;
- the Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects launched into Outer Space 1968;
- the Convention on International Liability for Damage Caused by Space Objects 1972; and
- the Convention on Registration of Objects Launched into Outer Space 1975.
The implementation of Canada's obligations under these treaties is largely the responsibility of the following:
- the Minister of Innovation, Science and Industry (the Minister);
- Innovation, Science and Economic Development Canada (ISED; formerly, Industry Canada), which is a federal department;
- the Minister of Foreign Affairs;
- the Space Section of the Non-Proliferation, Disarmament and Space Division of the International Security Bureau of Global Affairs Canada; and
- the CSA.
The Minister and ISED regulate the use of radio frequencies by satellite networks and Earth stations in Canada and associated radio apparatus pursuant to the Radiocommunication Act.4 The Minister of Foreign Affairs is responsible for the licensing of remote sensing space systems in accordance with the Remote Sensing Space Systems Act (RSSSA).5
As providers of telecommunications services, satellite operators and service providers may also be subject to regulation by the Canadian Radio-television and Telecommunications Commission (CRTC). The CRTC is the regulatory body that administers regulation of telecommunications in Canada pursuant to the Telecommunications Act.6
There is currently no specialised regulatory framework applicable to satellite launch facilities and services in Canada.
Regulation in practice
i Regulation of satellite communications in Canada under the Radiocommunication Act
A satellite that is under the direction and control of a federal or provincial government of Canada, a citizen or resident of Canada, or a corporation incorporated or resident in Canada must hold a radio or spectrum licence issued by the Minister pursuant to the Radiocommunication Act and the Radiocommunication Regulations.7 The Minister is granted broad discretion under the Radiocommunication Act to issue licences and other authorisations for the use of radio frequency spectrum and the operation of radio apparatus, and to fix the terms and conditions of these authorisations. In exercising this discretion, the Minister is guided by the objective of ensuring the orderly development and efficient operation of radiocommunication in Canada. The Minister may also have regard to the objectives of Canadian telecommunications policy that are identified in the Telecommunications Act. These objectives include the provision of high-quality and affordable telecommunications services to all regions of Canada and increased reliance on market forces. As mentioned in Section I, given Canada's large land mass and the low population density in many parts of the country, satellites have played, and are expected to continue to play, an important role in achieving Canadian telecommunications policy objectives, including ensuring that all Canadians have access to affordable high-speed broadband access services.
ISED's policy framework for the authorisation of commercial fixed-satellite service and broadcasting-satellite service satellites
ISED's policy framework for the licensing of fixed-satellite service (FSS) and broadcasting-satellite service (BSS) satellites that are under Canadian direction and control is set out in RP-008 – Policy Framework for Fixed-Satellite Service (FSS) and Broadcasting-Satellite Service (BSS) (RP-008).8 RP-008 was first issued in 1998 to implement Canada's specific commitments under the GATS to open the Canadian marketplace to competition in satellite services. In particular, Canada agreed to eliminate Telesat's monopoly on the provision of commercial satellite services in Canada and routing restrictions on domestic and international telecommunications traffic.
The overarching objective of the policy framework set out in RP-008 is to maximise the economic and social benefits that Canadians derive from the radio frequency spectrum resource. In the case of FSS and BSS satellites, the more specific objective is to ensure that Canadians have access to the satellite capacity they need in all regions of Canada, including the north. Since its introduction in 1998, RP-008 has been amended to address changes in Canadian policies relating to use of foreign satellites for the carriage of Canadian broadcasting services, the allocation of satellite authorisations and foreign ownership requirements, as well as non-geostationary satellite orbit (NGSO) constellations.
RP-008 provides that applications to operate Canadian FSS and BSS space stations will be assessed on a first come, first served basis in accordance with assessment criteria relating to (1) the eligibility to hold a spectrum or radio licence, (2) the Canadian direction and control of the space station, (3) compliance with Canadian spectrum allocations and utilisation policies, (4) Canadian capacity and coverage requirements, and (5) the technical plan, including the space debris mitigation plan, for the space station. Eligibility and Canadian direction and control requirements for Canadian-authorised space stations are discussed further below.
RP-008 also identifies the assessment criteria for approval to use foreign-authorised FSS satellites to provide services in Canada. Foreign satellites that are authorised by WTO countries will generally be approved for use in Canada provided that the frequencies used for communications in Canada comply with Canadian spectrum allocation policies, as set out in the Canadian Table of Frequency Allocations, and spectrum utilisation policies, and that coordination requirements with licensed Canadian satellites have been satisfied.
ISED's policy framework for the authorisation of commercial mobile-satellite service providers and satellites
ISED's policy framework for the provision of commercial mobile-satellite service (MSS) in Canada is addressed in RP-007 – Policy Framework for the Provision of Mobile Satellite Service Via Regional and Global Satellite Systems in the Canadian Market (RP-007).9 RP-007 was also substantially amended in 1998 to implement Canada's GATS commitments to permit Canadian service providers to use foreign-owned and operated MSS space station facilities to deliver services in Canada, and to remove routing restrictions on carriage of domestic and international MSS communications.
RP-007 identifies the criteria that must be addressed by entities seeking authorisation to hold licences for MSS user terminals in Canada. These criteria include eligibility to hold a radio or spectrum licence, and compliance with Canadian spectrum allocation and utilisation requirements. Applications are also assessed with reference to other public policy criteria, including: the extent to which the services will provide access to reliable, high-quality, affordable services throughout Canada; use of Canadian facilities; prospects for stimulating research and development in Canada; and protection of privacy. An entity seeking the authority to operate a Canadian-authorised MSS space station must also comply with the licensing procedures and requirements for domestic satellites, as described below.
Licensing procedures for domestic satellites
ISED grants spectrum or radio licences to operate space stations under Canadian direction and control on a first come, first served basis. The frequencies must be allocated to the authorised satellite service in the Canadian Table of Frequency Allocations, which allocates frequencies to different radiocommunication services in Canada in accordance with the final resolutions of World Radio Conferences, with amendments to address unique domestic requirements.
An applicant for a space station radio or spectrum licence must submit a written application to ISED. The application must address the assessment criteria identified in RP-008, including: eligibility to hold a spectrum licence; Canadian direction and control of the proposed space station; compliance with the International Telecommunication Union (ITU) Radio Regulations, and Canadian spectrum allocation and utilisation policies; and compliance with Canadian capacity and coverage requirements. ISED has specified minimum spectrum efficiency requirements for FSS and BSS stations. In addition, ISED has established Canadian coverage requirements for geostationary orbit (GSO) satellites operating at or between 70˚W and 130˚W (the Canadian geostationary arc) and NGSO constellations. Applicants must also provide a detailed technical plan for the proposed space station, including a space debris mitigation plan. The latter must describe measures that will be implemented to mitigate the possibility of orbital debris and how the satellite will be deorbited. The space debris mitigation plan for GSO satellites must conform with ITU Recommendation ITU-R S.1003-2, 'Environmental protection of the geostationary-satellite orbit'. The orbital debris mitigation plan for NSGO satellites must conform with the guidelines issued by the Inter-Agency Space Debris Coordination Committee. This means that the decommissioning plan for NGSO satellites must demonstrate deorbiting or disposal within 25 years of the end of the operational life of the satellites. Licence applications must also include ITU filing information, which is reviewed and forwarded to the ITU by ISED. Applicants for a licence to operate MSS space stations must also address the assessment criteria for MSS providers.
Licence applicants may seek waivers of technical and other requirements, with the exception of the eligibility requirements for licensees. To obtain a waiver, an applicant must demonstrate that the waiver would not cause harmful interference or otherwise be problematic.
ISED issues spectrum licences for the operation of Canadian directed and controlled FSS, BSS and MSS space stations. A spectrum licence authorises a satellite service using identified frequencies consistent with an ITU filing over an identified coverage area from an orbital location or, in the case of an NGSO constellation, in accordance with the orbital parameters approved by ISED. A spectrum licence for an NGSO constellation also identifies the maximum number of satellites authorised under the licence. These spectrum licences are typically issued for a 20-year term, with a high probability of renewal absent non-compliance with licence conditions or a reallocation of the licensed spectrum to a different use. An MSS space station spectrum licence also authorises the operation of mobile user terminals in Canada, as well as the temporary roaming of foreign-authorised mobile terminals in Canada.
The operation of Canadian directed and controlled space stations for the provision of services other than FSS, BSS and MSS is currently authorised by radio licences. Radio licences are granted for a one-year term, renewable annually on payment of the annual licence fees absent non-compliance with licence conditions or a reallocation of the licensed spectrum to a different use.
Licensing procedures for MSS providers
An applicant for an MSS provider authorisation must submit a written application to ISED. The application must address the assessment criteria identified in RP-007 (e.g., eligibility to hold a radio authorisation, compliance with Canadian spectrum allocation and utilisation policies, and other public policy criteria). The application must also include a description of the proposed system, a copy of the agreement with the satellite operator (if different from the applicant) and technical information on subscriber Earth stations. Successful applicants ultimately receive a spectrum licence authorising mobile subscriber terminals in Canada.
Post-authorisation conditions for Canadian-licensed satellites
ISED has established standard deployment milestones for the deployment of Canadian-licensed commercial satellites. Under these milestones, a commercial GSO satellite is required to be in operation within five years of authorisation. For commercial NGSO satellites, one-third of the constellation must be in operation within six years of authorisation, and the full constellation must be in operation within nine years of authorisation. Commercial satellites are also subject to intermediate milestones relating to, for example, the execution of construction and launch contracts for the satellite. ISED has stated that milestones are established for non-commercial satellites on a case-by-case basis in light of the specific satellite project.
Canadian satellite licence conditions also address compliance with Canadian laws and regulations, including licence eligibility requirements, as well as obligations relating to Canadian direction and control, coordination, service in Canada and Canadian coverage, space debris mitigation, annual reporting and payment of annual fees. FSS and BSS satellites are also subject to a Canadian public benefit requirement aimed at improving connectivity in underserved parts of Canada.
Canadian-licensed MSS satellites are subject to additional conditions (including a public benefit obligation) applicable to authorised MSS providers (see below).
Post-authorisation conditions for MSS providers
MSS provider spectrum licences include conditions requiring compliance laws and regulation, Canadian coverage, annual reporting and fees. In terms of Canadian coverage, MSS providers must make fair and reasonable efforts to offer service to all regions of Canada within the coverage contour and service availability of the satellite. MSS provider licence conditions also require expenditure on research and development if a Canadian revenue threshold is exceeded, compliance with lawful intercept obligations, and compliance with technical requirements relating to Canadian and visiting foreign subscriber Earth stations.
Eligibility to hold a spectrum or radio licence
Eligibility to hold a spectrum or radio licence is prescribed by the Radiocommunication Regulations. In accordance with these regulations, a corporation must be incorporated or continued under the laws of Canada or a province of Canada to be eligible to hold a spectrum or radio licence; however, there is no requirement for Canadian ownership or control of the licence holder.10
Direction and control of Canadian-licensed satellites
Canadian-licensed satellites must be under direction and control in Canada of the licence holder. While third-party control facilities may be used, ISED requires that the licence holder have the contractual ability to direct operations of the licensed facilities at all times. The primary control facilities for GSO satellites may be located outside Canada, provided that the licence holder has a secondary control facility in Canada that is capable of executing a minimum set of control operations within 24 hours of a request to do so by ISED. Both the primary control and network operations centre for Canadian-licensed NGSO satellites must be located in Canada.
Revocation of radio authorisations
The Minister may revoke a radio authorisation issued under the Radiocommunication Act where the Minister has determined that the holder of the authorisation has contravened the Radiocommunication Act, the Radiocommunication Regulations, or a term or condition of the radio authorisation, or that the authorisation was obtained through misrepresentation. With the exception of failure to pay licence fees (where only written notice is required), the Minister must give the holder of the authorisation a reasonable opportunity to make written representations to the Minister before revoking a radio authorisation.11
Satellite use policy for the provision of broadcasting services
It remains Canadian policy that Canadian satellite facilities should generally be used for the provision of Canadian programming services for direct reception by the Canadian public. There are two exceptions to this policy. First, non-Canadian satellites may be used in exceptional circumstances where Canadian satellites are not available to support specialised satellite delivery of digital satellite subscription-based radio services. Second, non-Canadian satellites may be used on a temporary basis in the case of an emergency that leads to a lack of Canadian satellite capacity. There are no restrictions on the use of foreign satellites to deliver foreign programming services that are primarily targeted to foreign audiences to Canadians.
Authorisation of foreign satellites
Foreign satellites must be authorised for use in Canada to communicate with fixed or mobile Earth stations in Canada. Market access can be obtained separately or as part of the Earth station licensing process. As indicated above, foreign satellites that are authorised by WTO member countries will generally be granted market access provided that the frequencies used by the system for communications in Canada comply with Canadian spectrum policy requirements, and Canadian coordination requirements have been satisfied. ISED requires completion of coordination with any Canadian-authorised satellite networks with an earlier date of ITU receipt before market access will be granted. Foreign satellites that are authorised by non-WTO member countries may be granted access to the Canadian market on a case-by-case basis.
Operation of Earth stations in Canada
In general, Earth stations are licensed separately from space stations in Canada. This includes telemetry, telecommunications and command Earth stations, gateway Earth stations and user terminals. Blanket authorisation of identical fixed Earth stations is currently available in specific Ku-band and Ka-band frequencies under an interim process established by ISED. Other transmitting fixed and transportable Earth stations must be individually authorised by a radio licence.
As discussed above, MSS providers in Canada must obtain a spectrum licence for subscriber terminals operating in Canada. The spectrum licence authorises an unlimited number of MSS subscriber Earth stations operating in Canada. This includes foreign-authorised user terminals operating temporarily in Canada, provided that the equipment satisfies applicable Canadian standards, is certified for use in Canada or is type-approved by an administration that is a signatory to the Global Mobile Personal Communications by Satellite Memorandum of Understanding (GMPCS-MOU) and carries the GMPCS-MOU mark. Separate Earth station radio licences are required for any MSS feeder link or telemetry, tracking and command Earth stations in Canada.
ISED applies its process for licensing MSS providers to persons seeking to provide satellite services to Earth stations in motion (ESIMs) in Canada. ESIMs communicate using FSS satellite networks and frequencies. Currently, an approved service provider is issued radio licences for a specified number of Canadian ESIM terminals. These terminals are authorised to operate on a no-interference, no-protection basis in Canada. The standard MSS provider conditions also apply.
ii CRTC regulation under the Telecommunications Act
Canadian and foreign satellite operators providing satellite services in Canada are also subject to regulation as telecommunications service providers by the CRTC pursuant to the Telecommunications Act. Specifically, satellite operators offering services in Canada must obtain a basic international telecommunications service licence from the CRTC to authorise the carriage of traffic between Canada and another country. If a service provider owns or operates telecommunications facilities that are located in Canada or licensed by Canada, additional obligations established by the CRTC may apply. However, the rates, terms and conditions of the provision of satellite transmission services, per se, have been forborne from regulation by the CRTC.
iii Appeal processes
Licensing decisions of the Minister are subject to judicial review proceedings before the Federal Court of Canada. Decisions of the CRTC made pursuant to the Telecommunications Act can be appealed by seeking a review and variance of the decision by the CRTC. CRTC decisions can also be appealed to the Federal Court of Appeal, on issues of law and jurisdiction with leave of that Court, and to the federal Cabinet.
Distinctive characteristics of the national framework
Canada has a separate licensing framework for remote sensing space systems, which is administered by a section of Global Affairs Canada. The licensing framework is established by the RSSSA and the Remote Sensing Space Systems Regulations.12 A licence is required under the RSSSA for the operation in Canada of a remote sensing space system or the operation of such a system outside Canada by a Canadian citizen or corporation incorporated in Canada. A remote sensing space system is defined in the RSSSA as one or more remote sensing satellites, the mission control and other facilities used to operate the satellite, and the facilities used to receive, store, process or distribute raw data received from the satellite.13 A satellite that is capable of sensing the Earth through electromagnetic waves is a remote sensing satellite.14
Anyone seeking a licence to operate a remote sensing space system must submit a written application to the Space Section of the Non-Proliferation, Disarmament and Space Division of the International Security Bureau of Global Affairs Canada. Applications are assessed with reference to Canadian national security and defence, international relations and other prescribed factors. The Minister of Foreign Affairs is specifically prohibited from granting a licence under the RSSSA without determining that the system disposal plan is satisfactory and without confirming receipt of adequate guarantees of performance of the disposal plan. Licences are subject to comprehensive conditions relating to, inter alia, control of the system, access to and control of data collected by the system, limits on communications of data about another country, use of cryptography and other information assurance measures, and system disposal. A remote sensing satellite licensed by Canada can only be controlled from outside Canada if any foreign commands can be overridden from a Canadian location and with ministerial approval. Licence applicants are also subject to security screening requirements.
i Satellite spectrum allocations
ISED has decided to reallocate the 3700–4000 MHz band from FSS to flexible use. FSS use of these frequencies will continue to be permitted in a limited number of satellite-dependent communities and at a maximum of four gateway Earth stations in other parts of the country serving these communities. The transition date for satellite and Earth stations using this band is 31 March 2025.
ISED has also allocated the 27.75–28.35 GHz band and the 38.6–40 GHz band to flexible use. Limited Earth station licences may be granted in these bands, subject to compliance with siting restrictions.
ii Consultation on revisions to ISED's satellite and Earth station licensing and fees frameworks
In August 2021, ISED initiated a consultation on updates to its licensing and fee framework for space and Earth stations. In the consultation, ISED is proposing to introduce spectrum licensing for all satellites consistent with the current approach to FSS and BSS satellites, spectrum licensing for Earth stations, and consumption-based Earth station licence fees. Under the Earth station licensing proposals, generic Earth station spectrum licences would be made available to identical fixed Earth stations and ESIMs in certain frequencies for use throughout Canada. Gateway and feeder link Earth stations would also be authorised under a Canada-wide spectrum licence, with site-specific approvals for each Earth station site operating under the licence. ISED has also proposed that the existing consumption-based fees for Canadian-licensed FSS and BSS space stations be applied to other types of space stations and has suggested new consumption-based fees for Earth station spectrum licences, including generic Earth station spectrum licences. Satellites granted market access in Canada are not currently subject to fees and the consultation document does not propose to change this.
Outlook and conclusions
The recently announced ISED consultation on its licensing and fee frameworks for space and Earth stations is an important development. While the licensing framework for FSS and BSS space stations has been updated relatively recently, ISED's approach to licensing of other satellite facilities and to licensing of Earth stations has not been reviewed for 20 or more years. A consistent framework for licensing of satellite user terminals is a welcome development. Revisions to existing licensing fees is also an important step in addressing anomalies in the existing fee structure, promoting efficient use of spectrum, and facilitating the competitive deployment of satellite broadband and other services in Canada.
1 Leslie J Milton is a partner at Fasken Martineau DuMoulin LLP.
2 Canadian Space Agency Act, SC 1990, c.13, s. 4.
4 Radiocommunication Act, SC 1989, c. 17, as amended.
5 Remote Sensing Space Systems Act, SC 2005, c. 45, as amended.
6 Telecommunications Act, SC 1993, c.38, as amended.
7 Radiocommunication Regulations, SOR/96-484, as amended.
8 ISED, RP-008 – Policy Framework for Fixed-Satellite Service (FSS) and Broadcasting-Satellite Service (BSS), Issue 4, June 2017.
9 ISED, RP-007 – Policy Framework for the Provision of Mobile Satellite Service Via Regional and Global Satellite Systems in the Canadian Market, Rev. 2, March 1999.
10 Radiocommunication Regulations, Section 9.
11 Radiocommunication Act, Subsection 5(s).
12 Remote Sensing Space Systems Regulations, SOR/2007-66.
13 RSSSA, Section 2.
14 RSSSA, Section 2.