Greenpeace New Zealand has won an important case before the country’s Supreme Court. While New Zealand law is not Canadian law the case suggests that the Canada Revenue Agency and the Government of Canada may face a tough time if the current government crackdown on campaigning by charities reaches the Supreme Court of Canada, as it may well do.

In 2008 Greenpeace New Zealand applied to the Charities Commission to be registered as a charity. The Commissions rejected the application on the grounds that although the bulk of Greenpeace’s purposes could be considered charitable, the purpose of promoting peace and disarmament was too political and was enough to cause the Commission to reject the application.

Subsequently the case has worked its way through the courts. In 2011 the High Court supported the Charities Commission with a decision that Greenpeace’s nuclear disarmament purposes were independent political purposes and therefore non-charitable.

A few days ago the Supreme Court of New Zealand reversed this decision and found in favour of Greenpeace. Reasons given for the decision included that a “political purpose” exclusion should no longer be applied in New Zealand: political and charitable purposes are not mutually exclusive in all cases; a blanket exclusion is unnecessary and distracts from the underlying inquiry whether a purpose is of public benefit within the sense the law

The Court also found that:

• it is difficult to see that all advocacy for legislative change should be excluded from being recognised as charitable. Promotion of law reform of the type often undertaken by law commissions which aims to keep laws fit for modern purposes may well be properly seen as charitable if undertaken by private organisations even though such reform inevitably entails promotion of legislation. Such advocacy may well constitute in itself a public good which is analogous to other good works within the sense the law considers charitable.
• even in the case of promotion of specific law reform, an absolute rule that promotion of legislation is never charitable is hard to justify. First, it is not apparent why there should be any distinction between promoting legislative change and promoting change in government policy. Perhaps more significantly, in the circumstances of modern participatory democracy and modern public participatory processes in much administrative and judicial decision-making, there is no satisfactory basis for a distinction between general promotion of views within society and advocacy of law change (including through such available participatory processes).
• a conclusion that a purpose is “political” or “advocacy” obscures proper focus on whether a purpose is charitable within the sense used by law. It is difficult to construct any adequate or principled theory to support blanket exclusion. A political purpose or advocacy exclusion would be an impediment to charitable status for organisations which, although campaigning for charitable ends, do not themselves directly undertake tangible good works of the type recognised as charitable.
• a strict exclusion risks rigidity in an area of law which should be responsive to the way society works. It is likely to hinder the responsiveness of this area of law to the changing circumstances of society. Just as the law of charities recognised the public benefit of philanthropy in easing the burden on parishes of alleviating poverty, keeping utilities in repair, and educating the poor in post-Reformation Elizabethan England, the circumstances of the modern outsourced and perhaps contracting state may throw up new need for philanthropy which is properly to be treated as charitable.
• just as promotion of the abolition of slavery has been regarded as charitable, today advocacy for such ends as human rights or protection of the environment and promotion of amenities that make communities pleasant may have come to be regarded as charitable purposes in themselves, depending on the nature of the advocacy, even if not ancillary to more tangible charity. . .  In the present case the Board has accepted that Greenpeace’s object to “promote the protection and preservation of nature and the environment” is charitable. Protection of the environment may require broad-based support and effort, including through the participatory processes set up by legislation, to enable the public interest to be assessed.

As previously stated, the New Zealand Supreme Court decision does not necessarily indicate the likely outcome of a similar Canadian case. However, much of the New Zealand decision is based on case law that is similar to that which may be placed before Canadian courts.

The full court decision and the Court’s media release can be found at http://www.courtsofnz.govt.nz/front-page/from/decisions/judgments by scrolling down to Case Number [2014] NZSC 105. The Greenpeace summary of the decision can be found at http://www.greenpeace.org/new-zealand/en/blog/greenpeaces-supreme-court-win-made-new-zealan/blog/50202/

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