Navigating the Skies

Can municipalities regulate drone use in public spaces?

Navigating the Skies

As drones soar in popularity, the imperative to balance innovation and recreation with safety and privacy concerns becomes more pressing. In Canada, the regulation of aeronautics is exclusively within the jurisdiction of the federal government. The Canadian Aviation Regulations (the “CARs,” which are federal regulations) set out a comprehensive framework governing the licencing and operation requirements for drones. Meanwhile, the provinces (and by delegation, municipalities) have the authority to regulate matters related to property and civil rights or matters of a purely local nature (including issues such as nuisance, noise and privacy).

This prompts a critical query: Can municipalities regulate drone use in public spaces (such as parks) without infringing on federal oversight?

Whether municipalities have the legal authority to enact bylaws impacting drone use will ultimately depend on the wording of the bylaw and the level to which it encroaches on “core” or “integral” aeronautics activities. There have been no reported Court decisions in which a person challenged a municipal bylaw on these grounds. The legal landscape is unsettled to a certain degree. In fact, Transport Canada even includes a statement on its website to caution drone operators to “respect all other laws when flying your drone.”

Some municipalities have enacted bylaws that include a complete prohibition on flying drones over municipal lands. Others have prohibited take offs and landings in public parks. Some bylaws include a general prohibition, while allowing drone operators to apply for a municipal permit to allow operations.

In 1951, the Supreme Court of Canada struck down a municipal bylaw because it encroached upon the federal undertaking of aeronautics (Johannesson v. West St. Paul (Rural Municipality), [1951] 4 D.L.R. 609). The impugned bylaw prohibited aerodromes in certain defined areas and permitting them elsewhere, but only upon the granting of a municipal licence. The Court noted that while the use of property is normally within the legislative purview of the provinces, the use of that property as an aerodrome could not be divorced from the subject matter of aeronautics. The Court further commented that it is “impossible to separate the flying in the air from the taking off and landing on the ground.” On this basis, the municipality could not prohibit aerodromes. Several Courts since that decision have applied a nuanced approach and only struck down municipal bylaws where they overtly regulate an activity that is “vital” or “integral” to aeronautics.

The Court has not considered these principles in relation to the various types of municipal bylaws that purport to regulate drone operations. A Court may find that a bylaw prohibiting the launching of a drone from a public park improperly regulates activities which are “vital” to aeronautics because the launching of the drone is impossible to separate from the “flying in the air.” However, municipalities may draft bylaws in such a way that they prohibit activities that are clearly within their jurisdiction, such as preventing nuisances or privacy infringements. While permit-based regulations may appear to represent a reasonable balance (enabling municipalities to address concerns within their constitutional powers without unduly encroaching on the federal regulation of aeronautics), it remains arguable that even these types of regulations are beyond the authority of municipalities (as in Johannesson) because they create additional requirements for drone operations which are more onerous than the licencing requirements set out in the CARs.

The enforcement of drone operations under the CARs falls under the jurisdiction of Transport Canada. The Minister of Transport may authorize other persons (such as the RCMP) to issue fines for designated offences related to drone operations. However, until such time that a drone operator challenges a municipal bylaw related to drone use, the enforceability of these municipal bylaws will remain unclear. In this regard, individuals operating drones throughout Canada are encouraged to follow the advice of Transport Canada and respect all laws (including municipal bylaws) when flying their drones.