As the issues relating to shortages in natural resources are increasing, people are looking for answers beyond earth. However, as we look to the stars for answers come unresolved legal questions. Who owns space? Who is allowed to conduct mining activities in space? Who takes proprietorship over the substances mined from space? Who is liable for any damage or injuries during commercial space mining missions? In an attempt to answer some of these questions, the Australian government is currently conducting a review of the Space Activities Act 1998 (Cth).

What is outer space and who owns it?

Historically, legal maxim cuius est solum est usque ad coelum et ad inferos, or “whose is the soil, his it is even to the skies and to the depths below” has been the basis of ownership in property law. However, in more recent times, especially in the context of astrophysics and rotating planets, the maxim has lost much of its original meaning and application. As such, countries each introduced their own legislative framework to regulate this subject and to arbitrarily delimitate the line between ‘airspace’ and ‘outer space’. In Australia, outer space is implied to start at 100km above sea level.1

Current legal sphere – Australia     

All civil space activities are administered by the Department of Industry, Innovation and Science in Australia, in accordance with the following:

  1. Space Activities Act 1998 (Cth);
  2. Space Activities Regulations 2001 (Cth); and
  3. Space Activities (Approved Scientific or Educational Organisations) Guidelines 2004 (Cth);

In particular, there is a focus on the operation of a launch facility in Australia, the launch of a space object in Australia or a facility outside of Australia and the return of a space object to a place in Australia.

As an active player in the global community, Australia is also a party to:2

  • Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (Outer Space Treaty) 1967;
  • The Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space (Rescue Agreement) 1968;
  • The Convention on the International Liability for Damage Caused by Space Objects (Liability Convention) 1972;
  • The Convention on Registration of Objects Launched into Outer Space (Registration Convention) 1975;
  • The Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (Moon Agreement) 1979; and
  • Agreement between the Government of Australia and the Government of the Russian Federation on Cooperation in the Field of the Exploration and Use of Outer Space for Peaceful Purposes in 2001.

Current legal sphere – Globally    

In November 2015, the United States, enacted into law the new Spurring Private Aerospace Competitiveness and Entrepreneurship Act of 2015 (SPACE Act 2015), which is to “facilitate the commercial exploration for and commercial recovery of space resources by U.S. citizens”.3 The US has always been at the front line, encouraging the ‘“he who dares wins” philosophy of the Wild West’.4 An example of this is the U.S. Government’s indemnification to US launch providers for extraordinary catastrophic third-party losses of a failed commercial launch, a feature that has been an element in US space law for the last 25 years. In the recent SPACE Act 2015, this indemnification was extended to 2025.

In early February 2016, Luxemburg has also shown its intention to legislate on the issue of space mining. Luxembourg's Economy Minister said that the aim of the legislation is to “open access to a wealth of previously unexplored mineral resources on lifeless rocks hurtling through space, without damaging natural habitats".5

The future for Australia

In October 2015, the Australian Minister for Industry, Innovation and Science announced the review of the Space Activities Act 1998 (Cth) and the Space Activities Regulations 2001 (Cth) (the Review). Relevantly, the terms of reference of the Review is to examine the appropriateness of the current legislation in:

  • supporting innovation and the advancement of space technologies;
  • promoting entrepreneurship and private investment in Australia, as well as opportunities for Australian firms to compete globally and into the future; and
  • adequately address emerging issues such as management of the space environment and technology advancement or convergence.6

The Government’s consultation process only recently concluded and an issue paper was released on 24 February 2016.7 This is followed by a public consultation period between 24 February 2016 and 30 April 2016, where the Government is inviting submissions from industry, researchers, state and territory governments and the general public.8 An analysis of these submissions will occur from May to July 2016 and the policy assessment and legislative process will begin in August 2016.

As part of the Review, the Government will also need to look at Australia’s international obligations. Notably, both theOuter Space Treaty 1967 and the Moon Agreement 1979 are founded to prevent unilateral commercial exploitation of outer-space resources. Article 1 of the Outer Space Treaty 1967 states that “[t]he exploration and use of outer space, including the moon and other celestial bodies, shall be the province of all mankind and shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development” (emphasis added). A similar clause is found in article 4 of the Moon Agreement 1979.

In light of the above, although the Government acknowledges the rising trend (and possibly future need) of space mining, it will be interesting to see what the legislative framework will do to balance Australia’s current obligations under its international treaties.