Review of New Zealand’s outer space laws further changes to come?

Hayley Miller, Campbell Featherstone, Gunes Haksever and Ashleigh Ooi of law firm Dentons Kensington Swan provide insights into New Zealand’s outer space laws and progress towards a national aerospace strategy.

In September 2022 the New Zealand Government invited public feedback on New Zealand’s space policy and broader aerospace strategy. Both consultations closed in October 2022 and a summary of submissions for each will likely be available in due course.

These consultations followed the Government’s May 2022 report on the review of the Outer Space and High-altitude Activities Act 2017 (OSHAA), which formed the basis of many of the issues raised for public discussion.

The OSHAA regulates commercial space activity in New Zealand and ensures that New Zealand’s national interests and national security are not adversely affected by the conducting of space activities in and from New Zealand. Commercial space activity is a relatively new industry in New Zealand but is a rapidly growing sector providing significant economic benefit, with a 2019 report indicating the sector contributed $1.69 billion to the economy.

The May 2022 review examined the OSHAA’s operation and effectiveness over the last few years, in light of increasing activity within the New Zealand space industry.

Background to the OSHAA

The New Zealand Government implemented the OSHAA in response to Rocket Lab’s intention to open a private spaceport at Māhia Peninsula from which it would launch rockets for commercial customers. At the time of Rocket Lab’s decision to commence space activities in New Zealand, New Zealand had no regulatory regime for space launches despite having ratified the following United Nations treaties:

• Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies 1967 (the Outer Space Treaty);

• Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space (the Rescue Agreement); and

• Convention on International Liability for Damage Caused by Space Objects (the Liability Convention).

The Liability Convention was (and still is) particularly significant as it provides that a launching state shall be absolutely liable to pay compensation for damage caused by its space objects on the surface of the Earth or to aircraft, and liable for damage due to its faults in space. The Convention applies where space objects are launched by any persons from a state’s territory, or by a state’s nationals from outside its territory.

New Zealand has since acceded to the Convention on Registration of Objects Launched into Outer Space 1975 (the Registration Convention).

Accordingly, when the Māhia spaceport was proposed around 2015, there was limited scope for the New Zealand Government to ensure that the launch of objects into space from New Zealand, or by New Zealand nationals, would comply with international law such that the Government would not be exposed to undue liability. The Māhia spaceport opened in 2016 and the first test launch was conducted in 2017. Around this time, the New Zealand Space Agency was formed and the OSHAA passed into law.

How the OSHAA works

The purpose of the OSHAA is to regulate space activities through licences and permits, to create a safe space industry in New Zealand which meets New Zealand’s national security interests, and complies with international requirements, while also allowing the industry to grow. The OSHAA is supported by two sets of regulations (‘Regulations’):

• the Outer Space and High-altitude Activities (Licences and Permits) Regulations 2017 (the Licensing Regulations); and

• the Outer Space and High-altitude Activities (Definition of Highaltitude Vehicle) Regulations 2017 (the HAV Regulations).

The OSHAA and Regulations work collectively in monitoring commercial space activity in New Zealand. They require all launches of launch vehicles and payloads into outer space, from New Zealand territory or by New Zealand nationals overseas, and all launch facilities located in New Zealand, to have a permit or licence. In addition, all launches of high altitude vehicles (‘HAVs’) from New Zealand must be licensed under the OSHAA.

The regulated activities

New Zealand regulates two categories of launch activities:

• The launch of ‘launch vehicles’, defined as a vehicle that reaches, or is intended to reach, outer space, or carries or supports the launch of a payload. A ‘payload’ is the commercial object being carried or placed in space by a launch vehicle, such as a rocket or satellite. The operation of ‘launch facilities’ (being facilities from which launch vehicles are launched) are also subject to regulation.

• The launch of ‘HAVs’, defined as an aircraft or any other vehicle that travels, is intended to travel or is capable of travelling to high altitude. ‘High altitude’ means an altitude above the higher of flight level 600 and the highest upper limit of controlled airspace under the Civil Aviation Act 1990. Common HAVs include balloons, gliders and drones (where they operate at sufficiently high altitudes).

The framework essentially requires all forms of activity at outer space or high altitudes to meet certain safety and security requirements and be licenced or permitted under one of the two categories above.

Mandatory review of the OSHAA

Given that the New Zealand space industry was largely undeveloped at the time the OSHAA came into force, the OSHAA was statutorily required to be reviewed three years after its inception to ensure it remained fit for purpose. Due to COVID-19, the review was delayed with the results being published earlier this year. The review was commercially well received by key stakeholders in the industry who welcomed the opportunity to provide information on what was working with the framework.

Generally, the review concluded that the OSHAA is performing well. The broad regulation-making powers within the OSHAA and Regulations have allowed the sector to grow and develop while still ensuring new technologies are regulated.

Some of the key recommendations in the review included:

• Assessing whether more detailed safety regulations are required for launch licences.

• Creating a new definition of ‘launch activity’ which relates to activity where a launch vehicle is intended to ‘go into Earth orbit or beyond the Earth orbit’. Launch licences are currently required where a launch is into outer space, but the OSHAA does not specify where high altitude ends and outer space begins. It is hoped that the new definition will make it clear whether a launch licence or a high-altitude licence is required, without needing to specify an upper limit to ‘high altitude’ or a lower limit to ‘outer space’. Such limits are not internationally agreed and most other countries have avoided creating their own limits.

• Further investigation on how to best regulate emerging high altitude activities such as satellite constellations and miniature satellites.

• Establishing a register for HAVs.

• Including a new regulation making power with the purpose of flexibility towards regulating new technologies.

Additionally, the review recommended creating a separate authorisation for the return of space objects or HAVs to New Zealand, where an object has not been launched from New Zealand, and is therefore not licensed under the OSHAA and not subject to any requirements (such as safety or environmental requirements) when re-entering New Zealand airspace and landing in New Zealand.

September 2022 consultations

The September 2022 consultation papers provided an opportunity for the wider public, including businesses that are interested in operating in the space sector or are otherwise impacted by activities carried out in this sector, to comment on the issues raised in the May 2022 report.

The New Zealand Space Policy Review Consultation invited businesses and individuals to share their views on “the values and policy objectives that underpin New Zealand’s space activities and engagements” and provide feedback to assist the Government’s creation of a National Space Policy, promote New Zealand’s interests at international fora and consider whether legislative changes are required to the OSHAA.

Further, the broader aerospace (space and aviation) consultation (Developing the Aotearoa New Zealand Aerospace Strategy) sought feedback on the foundations, goals and future outputs of New Zealand’s aerospace strategy. Proposed goals for this strategy included:

• safely integrating all forms of autonomous aerial vehicles;

• being at the forefront of global sustainable space activities;

• actively supporting a permanent human presence in space; and

• critical decision-making made easy through aerospace-enabled data, tools and applications.

Submissions on the space policy consultation closed on 31 October 2022, and submissions on the aerospace strategy consultation closed on 12 October 2022. A summary of submissions for each will likely be available in due course.

If you would like to know more about New Zealand’s outer space laws and how they might affect you, feel free to get in touch with Dentons Kensington Swan’s technology, telecommunications and data experts Hayley Miller, Campbell Featherstone or Gunes Haksever.

This article was originally published in September 2022 and minor amendments have been made to the original text to reflect the fact that the consultation periods referred to closed in October 2022.