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New Zealand Court Finds Public Environmental Advocacy is Charitable The High Court of New Zealand released its decision in Greenpeace of New Zealand Inc v Charities Registration Board on August 10, 2020. The decision considers questions of charitable purposes related to advocacy and education, as well as whether an organization that carries out illicit activities may be precluded from obtaining charitable status. As early as 2008, Greenpeace of New Zealand Inc (“Greenpeace”) had begun to seek charitable status in New Zealand, generally speaking, on the basis of protecting the environment, educating the public about environmental protection, and promoting peace, nuclear disarmament and the elimination of weapons of mass-destruction. The Charities Registration Board (the “Board”) had rejected Greenpeace’s applications for charitable status on the basis that: (i) its advocacy for environmental protection was not charitable, but instead involved promoting its views that were not of public benefit in a way the law recognizes as charitable; (ii) with regard to education, it promoted its own views and did not advance a genuine, objective education; (iii) its purpose of promoting peace, nuclear disarmament and the elimination of weapons of mass-destruction was non-ancillary and were not a benefit in the way the law recognizes as charitable; and (iv) Greenpeace and its members are involved in illegal activities from which an illegal purpose could be inferred. Regarding environmental advocacy, the court found that environmental advocacy could be charitable in itself, as protecting the environment often requires broad-based support and effort. It further held that advocating for environmental protection by promoting its views in opposition to competing interests and views was no less in the public interest despite those competing interests. It therefore found that Greenpeace was not ineligible for charitable status on the ground of environmental advocacy. In considering Greenpeace’s “advancement of education”, the court found that its advocacy was “aimed at persuading the public to adopt a particular attitude on some broad social question,” which was different from the “advancing education” head of charity under New Zealand’s Charities Act. The court instead found that Greenpeace’s educational activities fell under the “any other matter beneficial to the community” head of charity, insofar as Greenpeace educates the public in support of its environmental advocacy activities, which the court found constituted a charitable purpose of public benefit. Based on the evidence, the court also found that the purpose of promoting peace, nuclear disarmament and the elimination of weapons of mass-destruction was a “historic” purpose, and that Greenpeace had not pursued any activities in furtherance of this purpose since 2004. The court therefore found this purpose to be ancillary and subsidiary to its “overall aspirational object […] to protect the planet of which humanity is part.” The court therefore found Greenpeace was not disentitled to charitable status because it retained this historic, and now subsidiary, purpose. Finally, with regard to illicit activities, the court found that these activities have historically involved “trespass, unlawfully being on property, resisting police, obstructing a public way, bill sticking, and disturbing meetings.” However, in examining the evidence, the court held that the examples of illicit activities that the Board has raised as issues were isolated incidents, and that the Board had not established that Greenpeace promoted illegal activity. Further, it held that all the activities were a form of non-violent protest “intended to draw attention to activities that are harmful to the environment,” and further that “[s]ometimes breaches of the law of the land ultimately advance a public benefit.” In any event, as these activities formed a small part of Greenpeace’s activities, the court held that it could not be inferred that Greenpeace has an illegal purpose based on those illicit activities. Given the court’s findings, it held that there was a charitable public benefit in Greenpeace’s advocacy work, and that it was entitled to charitable registration. Although this decision is from New Zealand and therefore not binding in Canada, the court’s findings will be of interest to the charitable sector in Canada. In Canada, an expansion concerning what is permitted as advocacy is no longer necessary given recent amendments to the Income Tax Act (Canada) permitting public policy dialogue and development activities discussed in Charity & NFP Law Bulletin No. 434 and No. 438. As such, a broad range of advocacy related activities such as those carried on by Greenpeace are permitted so long as they advance a stated charitable purpose. Other aspects of the decision may also be of interest in Canada and other common law jurisdictions, including the court’s analysis of “illegal” activities and whether a charity operates for an illegal purpose. |
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