April 8, 2024

Introduction

On April 8, 2024, the moon passes between Earth and the sun, creating a total solar eclipse visible across parts of North America/Turtle Island, including throughout parts of Atlantic Canada. The total solar eclipse will even pass over the headquarters of the Canadian Space Agency (“CSA”) in Longueuil, Quebec.

The total eclipse, which will plunge many cities and towns into darkness for several minutes, has captivated the public’s attention and interest, and for good reason: space and celestial events have been the subject of fascination for many generations, although it is only in the last century that humans have been capable of sending objects into space and traveling there ourselves. Canada’s history with space exploration is even more recent: although we have had a total of 14 Canadian astronauts – including former Commander of the International Space Station, Chris Hadfield, former cabinet minister Marc Garneau, and former Governor General of Canada, Julie Payette – the CSA was only established in 1990 and Canada has not had any commercial rocket launches.

Now, as Atlantic Canadians prepare to take in the spectacle of the total solar eclipse, we thought it was appropriate to revisit Canada’s relationship with space, and particularly, the relationship between space, science, technology, law, and the environment.

Canada’s Current Regulatory Regime for Space Exploration

The CSA’s objectives, set out in the Canadian Space Agency Act, is to promote the peaceful use and development of space, to advance the knowledge of space through science, and to ensure that space science and technology provide social and economic benefits for Canadians. In carrying out its objectives, the CSA assists in coordinating space policies and programs; planning, directing, managing and implementing programs and projects related to scientific or industrial space research and development; promoting transfer and diffusion of space technology; encouraging commercial exploration of space; and other functions, as needed.

Surprisingly, despite its 30+ year history, its lofty objectives, and the dedicated work of CSA staff, Canada has a relatively nascent regulatory framework for space exploration.

The space transportation industry (i.e., space travel and rocket launches) is not effectively regulated in Canada. The Aeronautics Act, whose primary purpose is to regulate aviation, is the key federal law that currently regulates space transportation. Canada also has no governing body or branch at the Civil Aviation Directorate or the CSA that is responsible for approving rocket launches. On October 27, 2020, at the Canadian Aeronautics and Space Institute ASTRO 2020 virtual series, Patrick Juneau, Director of Aviation Safety Policy and Intelligence for Transport Canada, made it clear that Canadian law is not prepared for space transportation. He is quoted as saying:

“The Aeronautics Act, which is the primary piece of legislation that I handle was not suited or built around space, but it does cover off at least some essential elements that allow us to make some movement on the pile for sure.”

The CSA is quite aware of the problem, because in 2023, it began consulting Canadians on a modern regulatory framework for space. Our organizations examined the regulatory framework that is currently in place in Canada for many aspects of the space industry and space research, and the Ecology Action Centre submitted comments during a public consultation about the CSA’s work to produce a modern regulatory framework. We observed that one glaring gap in the current regulatory landscape is a lack of assessment of facilities on Earth that support research and launches into space, namely spaceports.

Current federal, provincial, and territorial environmental impact assessment processes are not set up to handle evaluation of space-related projects (such as spaceports). For example, the Physical Activities Regulations created under the federal Impact Assessment Act (“IAA”) do not list spaceports as a physical activity; this is especially problematic because some spaceports would likely have required assessment by the Regulations Designating Physical Activities under the Canadian Environmental Assessment Act, 2012 (the precursor to the IAA). Under subsection 26(a) of those former regulations, all aerodromes located within the built-up area of a city or town required a federal environmental assessment. An aerodrome is any area of land used for departure of aircraft, whereas “aircraft” includes a rocket (see the full definitions of “aerodrome” and “aircraft” under the Aeronautics Act).

Spaceports in Canada pose unique risks with regards to the fuels used for rockets, the potential impacts to land and water as a result of spent fuel canisters falling to the Earth (including in jurisdictions outside of Canada like international waters beyond the 200NM EEZ or in jurisdictional waters or lands of the United States of America), and impacts to multiple levels of the atmosphere. All of these impacts are within federal jurisdiction and could be assessed if spaceport projects required federal impact assessment.

This regulatory gap has posed challenges for our organizations and at least one community in Atlantic Canada, where Canada’s first commercial spaceport has been proposed.

The Existing Challenge with Space Exploration Regulation: the Canso Spaceport Case Study

The spaceport project in Canso, Nova Scotia, proposed by Maritime Launch Services, provides a prime example of how the current regulatory framework, and in particular environmental impact assessment process, is not addressing the full range of regulatory challenges with spaceports.

The project was first proposed in 2018 and assessed under Nova Scotia’s environmental assessment (“EA”) process, which is carried out under the Environmental Assessment Regulations of the Environment Act. However, communities and organizations were concerned that the province did not have the expertise to assess the project or to address impacts within federal jurisdiction like marine waters, fisheries, Aboriginal rights, national defence, marine transportation, migratory birds, and federal species at risk. Multiple organizations requested that the federal Minister of Environment and Climate Change designate the project for assessment. The requests were denied because the Minister determined that the impacts could be adequately assessed by the province.

Ultimately, the project was assessed through Nova Scotia’s provincial EA process despite concerns that the provincial process and government staff were not prepared for spaceport evaluation. For example, during the EA process the proponent did not provide information requested by government staff to evaluate the project, and some of the technical expertise needed to evaluate aspects of the spaceport project (like chemical properties and environmental impacts of hydrazine, a component of the rocket fuel to be used) was not available, even during review by the CSA.  Despite serious concerns, particularly from communities around Canso, NS, the project was approved.

Community members in Canso and surrounding communities continue to raise questions, provide information, engage with decision-makers and rights-holders, and seek answers from the proponent regarding their concerns. Despite serious concerns about the limited expertise of the provincial and federal authorities to review technical aspects of the project, and the lack of a regulatory regime to deal with some impacts of the project like toxic substances and international impacts, the proponent and the Government of Nova Scotia, are supportive of some version of the project moving forward.

 It is our opinion that the current provincial assessment processes in Nova Scotia did not effectively assess the potential impacts of the spaceport facility. Additionally, a lack of transparency and community engagement raises concerns about the whether Canada’s first proposed private spaceport is lumbering forward on shaky ground from environmental and social licence perspectives.

Concluding Remarks

 The regulatory framework for the space industry should align with how the Canadian government evaluates and regulates other large industrial projects in order to protect people and the environment. Spaceports are large industrial projects with potentially significant effects in federal jurisdiction like other projects that are evaluated under the Impact Assessment Act. They pose unique and emerging risks on areas of federal jurisdiction. A comprehensive regulatory framework for space must recognize the risks spaceports pose to these areas of federal jurisdiction.

One of the goals of Canada’s new regulatory framework for space should be to reduce potential impacts of space research and the space industry here on Earth. If we are to further explore outside of our world it should not be done in a way that compounds existing problems on the sole inhabitable planet in our solar system.

About the Co-Authors:

Mike Kofahl is a staff lawyer at East Coast Environmental Law who works on impact assessment and has provided support to community members related to Canada’s first proposed commercial rocket launch site.

Karen McKendry is a member of the Wilderness Team at the Ecology Action Centre who has worked to support the community-based organization Action Against the Canso Spaceport.

 Additional Resources:

You can find more information about the total solar eclipse on the Canadian Space Agency webpage.

The Government of Canada’s webpage about developing a regulatory framework for space.

Learn more about environmental impact assessment processes in East Coast Environmental Law’s Summary Series resources on the topic for New Brunswick, Newfoundland and Labrador, Nova Scotia, and Prince Edward Island.