For all personkind?
If you have been enjoying the latest installments of AppleTV’s “For All Mankind,” you may, as a mining industry participant, be wondering what is out there. If you have not been watching, J.J. Abrams has created another alternate universe. In this version, Russia beats the United States to the moon, and the space race dominates the subsequent 40 years in a way that energizes life on earth, technological change and superpower competition. If your thoughts drift to the stars this summer, you are not alone.
It may not be at your boardroom table yet, but the Government of Canada has started to turn its policy engine to contemplate conditions in the great unknown. The first stop is the moon.
In Bill C-19, the legislation that implements the 2022 federal budget, an amendment is included that says, “A Canadian crew member who, during a space flight, commits an act or omission outside Canada that if committed in Canada would constitute an indictable offence is deemed to have committed that act or omission in Canada.”
Presumably, the act or omission would need to occur on the surface of the moon, on the planned Lunar Gateway space station or while traveling to it. Canada is participating in the Lunar Gateway project. The proposed criminal law change is part of amendments to support participation in that project. While we have not floated a new mining law yet, we might want to start thinking about what happens when an occupant of the Lunar Gateway backs a moon rover into an interesting outcrop.
Mining on the moon
I had the good fortune to take an elective in space law many moons ago. Taught by Bin Cheng, the authority in the subject from University College London, we contemplated satellites and extraterrestrial bodies. We spent much of the course on fascinating attempts through the United Nations to regulate the use of space through international treaties. The Agreement Governing the Activities of States on the Moon and Other Celestial Bodies stalled without a single ratification by any country capable of independent space flight.
Perhaps the relationship to national interests in mining were behind the failure. The Moon Treaty provided at Article 11.5 that states undertake, “to establish an international regime, including appropriate procedures, to govern the exploitation of the natural resources of the moon as such exploitation is about to become feasible.” Among purposes, which included orderly development, was “equitable sharing by all States Parties in the benefits derived from those resources, whereby the interests and needs of the developing countries, as well as the efforts of those countries which have contributed either directly or indirectly to the exploration of the moon, shall be given special consideration.” Despite meetings on the framework, no progress was made.
Fast forward, NASA has tried to found a new regime and six new countries have signed the NASA-led Artemis Accords so far in 2022, bringing the total number of signatories to 20. Canada is one of the founding eight member countries to sign in October 2020. The Artemis Accords establish a practical set of principles to guide space exploration co-operation, including for space resources. While sovereignty claims are limited, like under the 1967 Outer Space Treaty led by the UN, the Accords are friendlier to the concept of exploration, exploitation and development within standards.
Daniel Sax, CEO of the Canadian Space Mining Corporation, in October 2021, was quoted in the Toronto Star, noting the special interest of Canada in resource opportunities. He said that Canada’s “resource-based economy means that we can ill afford to be left behind as others move into scouring the heavens for resources, starting with the moon … Someone is doing it. The ship has already left. Canada is not on that ship.”
Canadian Space Mining Corporation and Interstellar Mining Inc. made written submissions as part of the 2022 pre-budget consultations, calling for flow-through share tax treatment and the METC to be extended to companies engaged in space resource exploration with specific intent to mine in outer space. The budget didn’t ultimately adopt this suggestion.
As we look at the stars from a dock or patio this summer, perhaps we need to start to think about what the rules for mining in space should include and whether exploration departments need to look for talent minded to “boldly go where no one has gone before.”
SANDER GRIEVE is a partner at Bennett Jones, Toronto.