“It is difficult to see how animal charities are within the spirit and intendment of the preamble to the Statute of Elizabeth I” (The Law and Practice Relating to Charities, 4th Edition. Hubert Picarda QC., p. 221. f.n. 11).
The preamble to the Charitable Uses Act 1601, known as the Statute of Elizabeth, attempts to classify or provide guidelines for the identification of charitable purposes and it was not, even in 1601, an exhaustive list of charitable purposes. Trusts for the advancement of religion were omitted as were some other trusts that were considered to be adequately administered and so not requiring the protection of the Act (for example, some educational institutions).
In Pemsel’s case in 1891, Lord Macnaghten classified the categories of charitable purposes under four heads:
“Charity in its legal sense comprises four principal divisions: trusts for the relief of poverty; trusts for the advancement of education; trusts for the advancement of religion; and trusts for other purposes beneficial to the community not falling under any of the preceding heads.” [Income Tax Special Purposes Commissioners v Pemsel  All ER Rep 28 at 55;  AC 531].
Hubert Picarda QC refers to animal charities as an “anomaly”.
“No general principle should be deduced from animal charities which are an anomaly.” (p. 221).
Not surprisingly, he makes no mention in his work of charities devoted to any “animal” belonging to any class of the phylum arthropoda, such as the Insecta (insects), let alone any single species within any one of the many Orders of Insecta, such as the Lepidoptera (butterflies and moths).
One can only imagine the utter disbelief and ridicule that lawyers of the 17th 18th and 19th centuries familiar with Charity Law would have expressed, if they had been informed that Charity Commissioners were considering the approval of a Trust, devoted to the promotion and preservation of a butterfly species, as a registered charity with tax benefits. Such news would have no doubt generated teary-eyed mirth among the legal profession, at a time when poverty, famine, disease and lawlessness was widespread throughout Europe, and charities existed largely for the relief of the victims of society ills, the upholding of community standards and/or the moral and spiritual improvement of its citizens.
Our legal understanding of what constitutes a “charitable purpose” remains very fragile – given that it rests on the preamble to a Statute that is over 400 years old. And yet today’s Charities officials employ the preamble classifications as though they are as rigid as the Laws of the Medes and Persians. Charities are assigned to one of the four stables, without any understanding or recognition that that some fit comfortably within two of more stables.
If we move forward 400 years from the charity classifications found in the preamble to the Statute of Elizabeth, to the present day charity law in New Zealand, we discover a Charities Act 2005, having been applied by the now disestablished Charities Commission, to legitimise two butterfly trusts as charities in 2007 and 2011.
The Monarch Butterfly NZ Trust was registered as a charity (CC11297) with the Charities Commission on 9 October 2007.
An Identical Trust (in terms of Trust Deed) – the Kapiti Monarch Butterfly Trust was registered as a charity (CC46929) with the Charities Commission on 22 September 2011.
The primary object of both Monarch Butterfly charities is:
(i) “To raise public awareness and increase biodiversity within New Zealand for the benefit of present and future New Zealanders”
What is startling to the legal mind, is how extremely BROAD this object is to have been accepted as a “charitable object” by the Charities Commission officials. And yet the Charities [Commission] guidelines urge prospective registration applicants for prospective charitable entities, to ensure that their objects for their Trusts or societies, are kept BROAD, in order to give sufficient scope to accommodate a range of activities (that serve to fulfil these BROAD charitable objects).
Biodiversityitself is such a BROAD term that it includes all of New Zealand’s fauna AND flora. Fauna is a very BROAD term as it includes all NZ animals, including its insects, worms, spiders, right down to single-celled animals. Likewise, flora is a very BROAD term as it includes all NZ trees, grasses,mosses right down to single-celled plants.
Both butterfly charities have as their next object, one that is so acutely narrow (in contrast to BROAD) as to make object (i) redundant in the sense that it cannot stand on its own and make any real practical sense. Object (ii) strictly limits the focus of the charitable activities to a mere handful of species within a tiny segment of the insect world (Lepidoptera – butterflies and moths). In fact the focus is so precise within that tiny segment as to specify only one species that charity workers are deeply concerned with – the Monarch Butterfly – one that is not even endemic to New Zealand, having spread over all the world’s main continents.
To be fair “other Lepidoptera species” are mentioned as part of the charity’s mission, but none are specified. New Zealand only has a tiny number of butterfly species, and hundreds of moth species; and yet, to be frank, the Trust is focused on a few pretty butterflies. The preservation/protection of these few species can hardly be seen as impacting significantly or relevant to the maintenance of New Zealand’s total biodiversity.
The singling out of the Monarch butterfly as a worthy benefactor of the charity’s focus, is based purely, it would seem, on aesthetic bias, not plausible, rigorous scientific grounds relating to critical biodiversity preservation/retention considerations. Thus object (iii) states:
(iii) “to increase opportunities for members of communities and visitors to New Zealand to enjoy and experience the Monarch Butterfly and other Lepidoptera species as part of the natural environment” [Emphasis added]
It is laudable that some people set up butterfly enclosures, disperse butterfly favourite food plants, study their ecology etc so visitors can experience and enjoy butterflies, but lawyers and academics with a keen interest in charity law are now asking all across New Zealand: how does this ‘Lepidopteristic activity’ fit within any of the four charity heads?
Non-Lepidopterists may happen to have an acute fascinations and passion for cockroaches or bed bugs. Will their applications to register charities devoted to the care, nurture, promotion, and study of these wondrous critters, in order to advance parallel “objects” to the Lepidopterists; receive the same warm approval from the Charities Registration officials as experienced by Lepidopterists, to set up their cockroach and bedbug charities ?
Perhaps, the answer is found in knowing whether or not such Charities officials find deep aesthetic pleasures in reflecting on the exquisite beauty of such wondrous critters and can envisage visitors to our fair land sharing such delights.