Municipal Bylaws Impacting Drone Operations – Are They Legal?

Overview

Canadians are taking drones to the skies in increasing numbers. In 2017, there were an estimated 337,468 drones in Canada, 74 percent of which were recreational, and 26 percent of which were used for non-recreational purposes1. Globally, the market for commercial drones is staggering - it is expected to reach US$17 billion by 2024.2

The influx of drones in Canada's skies are creating a new and growing concern for lawmakers. As cities and towns are grappling with the safety (and other) concerns presented by drone use in their borders, more and more municipalities are enacting bylaws that affect drone operations. In many cases, municipal bylaws place additional requirements on drone operators beyond what Part IX of the Canadian Aviation Regulations (the CARs) require.

Do municipalities have the legal authority and jurisdiction to enact bylaws impacting drone operations? The answer depends on the specific nature and wording of the bylaw, and whether the provisions improperly encroach on the Canadian federal government's exclusive authority to regulate aeronautics granted by the Constitution Act, 1867.3

In order to mitigate legal risks when conducting flights, drone operators need to analyze and abide by all applicable municipal bylaws before flight. Unless a court determines that a municipal bylaw impacting drone operations is invalid, drone operators must comply with the bylaw at all times. Municipalities ought to ensure that their bylaws are clearly drafted, and that they do not overreach by regulating drone operations in ways inconsistent with the CARs.

Legal background

Constitutional division of powers

In Canada, the federal government (Federal Government), and the provincial and territorial governments (Provincial Governments) have the power to make laws. Section 91 of the Constitution outlines the powers of the Federal Government, which include aviation, trade and commerce, military, public debt, navigation and shipping, bankruptcy, and insolvency.4 The authority and jurisdiction to make laws and regulations relating to drones and other aviation activities falls under the Federal Government's exclusive jurisdiction. In addition to the specific powers set out in section 91, the Federal Government has the power to make laws for the peace, order and good government (POGG) of Canada.5

Sections 92, 92A and 93 outline the powers of the Provincial Governments. These powers include local works and undertakings (with limited exceptions set out in Section 92(10)), property and civil rights, and generally all matters of a merely local or private nature in the province.6

Powers of municipalities

Municipalities have the power to pass bylaws to allow them to provide any service that the municipality considers necessary or desirable for the public, but are limited by the powers delegated to them by the province in which they are situated. 7

Bylaws can cover issues such as governance structure, accountability and transparency, financial management, public assets, economic social and environmental well-being of the municipality, including climate change, health and safety, authorized services, protection of persons and property, animals, structures, and business licensing. Further, the courts shall "broadly" interpret municipal powers to enable them to govern their affairs and respond to municipal issues.8

To date, the most common municipal bylaws...