As companies mine the potential of UAVs, the law drones on
Before it came to describe pilotless aircraft in the mid- 20th century, the word drone referred to the male honeybee, a lazy, idle contributor to the hive whose sole job is to mate with the queen. He does not help the female workers gather the nectar and pollen needed for honey production.
By contrast, drone technology is neither idle nor lazy: modern drones and the peripherals they carry are increasingly intelligent and versatile, causing them to proliferate at a greater rate than ever before. One need only turn to YouTube to see how ubiquitous drones (also known as Unmanned Air Vehicles or UAVs) have become. Vloggers now routinely supplement their footage with stunning aerial photography at angles that were previously reserved for the six o’clock news chopper and Hollywood filmmakers with multimillion-dollar budgets.
These two imperatives – greater sophistication and lower cost – have joined to make drones an attractive investment for the private sector.
The mining industry is fuelling the buzz. Last year, a writer in this journal lauded the “much less stringent regulatory environment” and “significant cost savings” to be had by leveraging drone technology to perform exploration, mapping, and inspection activities that previously required a helicopter. Drones can monitor staff, identify threats to safety, and prompt an intervention before damages occur.
However, there are several legal issues that mine owners and operators should consider before looking to the skies.
Transport Canada’s regulation of UAVs focuses on ensuring the safe operation of these hovering robots. According to the Canadian Aviation Regulations, hobbyists may fly drones weighing 35 kg or less, subject to certain requirements. However, commercial users must follow stricter rules. In particular, section 602.41 prohibits users from flying UAVs in Canada without first obtaining a Special Flight Operations Certificate (SFOC), which imposes conditions to ensure safety. Corporations operating a drone without a SFOC or in breach of its conditions may be fined up to $25,000. Transport Canada also publishes non compulsory general safety practices. In the event of a claim for negligence following an accident, these recommendations are likely to inform a court’s interpretation of the standard of care owed by an operator to its employees and others on the ground.
Transport Canada plans to announce additional drone regulations in early 2017. Meanwhile, the United States Federal Aviation Administration issued a comprehensive set of rules this past June that are expected to expand the use of UAVs across many applications and industries. US regulations in this area are still catching up to Canada’s.
While safety is a significant concern deserving of attention, the Office of the Privacy Commissioner of Canada (OPC) criticized the legislative regime for drones in a 2013 report because it does not address new privacy concerns raised by persistent, surreptitious surveillance. For instance, whether a drone’s technologies could violate individual privacy does not factor into Transport Canada’s decision to issue a SFOC. But make no mistake: to the extent that drones collect, use, or disclose personal information – which includes video surveillance – they are governed by the federal Personal Information Protection and Electronic Documents Act. As the OPC makes clear, “organizations using drones will be expected to go further to genuinely address the privacy implications of their use, and ensure that drones are used in accordance with privacy laws and guidelines.”
Privacy may be less of a concern where drones are used for remote mining operations, away from inhabited areas. Canada’s existing privacy laws govern the protection of personal information, whereas mining activities may be more likely to engage spatial and physical privacy. Until and unless new rules are introduced to regulate drones in these contexts, the OPC has identified factors that it will consider relevant to assessing whether certain drone data-collecting activities are reasonable, including the vantage point, location, and context in which the information is collected, used, or disclosed. The type of technology used and the purpose for which data is collected will help to determine the degree of the intrusion. Individual consent to the collection, use, or disclosure may be implied, but that could be difficult to justify if the drones are not likely to be detected on the ground.
As drone technology reaches new heights, the law will continue to evolve. Regardless of its trajectory, one thing appears to be certain: unlike the male honeybee, the fruits of drone technology’s labour will be sweet.
Tony Morris is a Senior Partner, Lawyer, Trade-mark Agent, at Norton Rose Fulbright and Agathon Fric, is an Articling Student at Norton Rose Fulbright.
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