Lama v Hope HC Auckland CIV 2004-404-1363
[2005] NZHC 1250
•10 March 2005
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2004-404-1363
BETWEEN KHYENTSE RINPOCHE LAMA
Plaintiff
ANDROSS HOPE, LAMA KARMA SHEDRUP, THELMA BURCHELL AND ELLEN DUCKWORTH AS TRUSTEES OF THE NEW ZEALAND KARMA KAGYU TRUST
Defendants
Hearing: 29-30 November and 1-3 December 2004 Appearances: D G Hurd and W M Patterson for Plaintiff
R T Fenton and L A Lawson for Defendants Judgment: 10 March 2005
INTERIM JUDGMENT OF BARAGWANATH J
Solicitors:
Patterson Hopkins, Auckland for Plaintiff Dyer Whitechurch, Auckland for Defendants
Counsel:
Mr D G Hurd, Auckland Mr R T Fenton, Auckland
LAMA V HOPE & ORS HC AK CIV-2004-404-1363 [10 March 2005]
Table of contents
Para
Introduction [1]
The objects of the trust [3]
Spiritual authority [4]
The trustees’ resolution of 5 December 1993 [5]
The contentions [6]
A wider debate [7]
Background [8]
The position of the plaintiff in New Zealand [14]
The issues [15]
The nature of the authority given to the plaintiff by the 16th Karmapa [16]
The role of this Court [25]
An apparent dilemma [29]
The principles for its resolution [31]
The undisputed factual background and the competing claims [42]
The hierarchy [42]
The four Eminences [43]
The competition among the Eminences [48]
The competing institutional structures [64]
The plaintiff’s case [67]
The Karmapa Charitable Trust [68]
The evidence of the Dorje Loppon [74]
The evidence of the Khenpo [75]
Other witnesses [76]
The trustees’ case [77]
Discovery and enthronement of Urgyen Trinley at Tsurphu with the plaintiff’s participation
[77]
The evidence of Heda Thago Lama [78]
The evidence of Bardor Tulku [81]
Other witnesses [84]
A deep-seated and non-justiciable dispute [87]
Did the plaintiff’s appointment survive the death of the 16th Karmapa? [91]
Was the plaintiff validly dismissed? Was his dismissal of the trustees effective?
[97]
The events of March 2004 [98]
The interlocutory proceedings [100]
Approach of the Court [104]
The plaintiff’s contention as to status quo [107]
The trustees’ contention as to status quo [109]
The language of the deed [123]
Decision [132]
Introduction
[1] Karma Kagyü is a prominent school of Tibetan Buddhism. Distinctive and important elements include the role of the Karmapa as its spiritual and administrative head and the tenet that his successor must be discovered in the person of his reincarnation. The New Zealand Karma Kagyü Trust was established by deed of trust dated 21 December 1979 and is incorporated under the Charitable Trusts Act 1957.
[2] The plaintiff was appointed in 1979 by His Holiness Gyalwa Karmapa the 16th Karmapa within the Kagyü lineage as spiritual director of the trust. The defendants are its current trustees. This case concerns entitlement following the Karmapa’s death on 5 November 1981 to control the Trust and the property of that trust, which includes its monastery at Kaukapakapa north of Auckland (known as Karma Dharma Chakra Choeling or Karma Choeling Buddhist monastery).
The objects of the trust
[3]The objects of the trust include
1.To promote and assist within New Zealand the doctrines and practice of the Karma Kagyüd Pa lineage of Tibetan Buddhism.
2.To establish within New Zealand temples and centres for the dissemination of the said doctrines and their practice and to maintain established temples and centres.
…
4.To appoint teachers of religious instruction and meditation to teach and promote the Board’s interests and objectives in New Zealand.
Spiritual authority
[4]Clause XII of the trust deed provides
Spiritual authority
(a)The Board shall recognise the spiritual authority of His Holiness Gyalwa Karmapa and his future incarnations or temporary successors as conveyed to the Board directly by His Holiness and his future incarnations or temporary successors or by such other person or persons appointed by His Holiness and his future incarnations or successors to supervise and assist the Board in carrying out the objects of the New Zealand KARMA KAGYÜ TRUST…
(b)No centre or school shall be established pursuant to the objectives of the New Zealand Karma Kagyü Trust and no teacher of religious instruction or meditation shall be appointed by the Board unless and until approval for such centre, school or teacher of religious instruction has been given by His Holiness Gyalwa Karmapa or his future incarnations or temporary successors or by such other person or persons appointed in terms of paragraph (a) hereof.
(emphasis added)
A vital question is the extent of the authority which this clause confers on one appointed “to supervise and assist the Board”.
The trustees’ resolution of 5 December 1993
[5] The plaintiff’s authority by virtue of appointment by the 16th Karmapa was recognised by the then trustees in a unanimous resolution of 5 December 1993 in terms reproduced in Appendix A. The vires of the resolution is challenged by the present trustees as inconsistent with the terms of the trust. The plaintiff responds that his authority derives not from the trust deed or the trustees but from the 16th Karmapa and that it survives his death.
The contentions
[6] The trustees contend that the plaintiff’s appointment as spiritual director of the trust has been terminated by either the death of the 16th Karmapa or withdrawal of his authority on 17 March 2004 by Tenzing Namgyal, General Secretary International Kagyü Headquarters (IKHQ) representing Urgyen Trinley Dorje whom the trustees recognise as the 17th Karmapa. The plaintiff, while respecting Urgyen Trinley as of high status within the Kagyü lineage, does not recognise his status as 17th Karmapa and he denies the authority of those acting in the name of Urgyen Trinley to countermand his own appointment by the 16th Karmapa. He has
given notice of dismissal of the trustees, claiming to hold authority under clause II(d) of the trust deed
The office of board member shall become vacant if:–… xii the Board is advised by His Holiness Gyalwa Karmapa or his future incarnations or temporary successors or by such other person or persons holding authority to do so from His Holiness or his future incarnations or temporary successors that a board member is not or is no longer suitable to continue as a board member and is no longer to be a board member.
A further crucial question is whether the plaintiff’s appointment under clause XII(a) constituted him a person holding authority to render the office of board member vacant under this sub-clause.
A wider debate
[7] The difference between the parties following the death of the 16th Karmapa is a New Zealand expression of a wider debate. Underlying the dispute is an issue of international dimensions whether, as the trustees assert, his true reincarnation has been identified in the form of His Holiness Urgyen Trinley Dorje as 17th Karmapa or whether, as some leaders within Karma Kagyü assert, the identification of Urgyen Trinley Dorje is yet to be confirmed, or whether the true 17th Karmapa is not Urgyen Trinley Dorje but His Holiness Thaye Dorje, or indeed whether, as the plaintiff has asserted, both Urgyen Trinley Dorje and Thaye Dorje are true reincarnations. It is common ground that that issue is not justiciable in this Court.
Background
[8] The historical account in this judgment is largely based on the evidence of Professor Geoffrey Samuel, formerly of the University of Newcastle and now Professorial Fellow at Cardiff University, who has specialised in religion and politics in Tibetan societies. Tibetan Buddhism comprises four main schools of which Karma Kagyü directly concerns the present proceeding. The Karmapa were the first to develop the institution of a succession of reincarnate lamas. It involves at least in theory the dead lama having had conscious control during the post-death state and
having deliberately chosen to be reborn so that the help of his followers would be continuous.
[9] Following the 16th Karmapa’s death a search for his reincarnated successor was undertaken. The question whether the 17th Karmapa has been discovered is of profound importance within the People’s Republic of China which contains the principal Karma Kagyü monastery at Tsurphu in Tibet, which founded in 1189 had been destroyed during the cultural revolution and replaced by new monastery built nearby; in the Republic of India where in 1959 the 16th Karmapa took up residence and established a monastery at Rumtek in Sikkim in the Republic of India; and throughout the world where the Kagyüpa lineage and the Karmapa are revered.
[10] Buddhism was received in Tibet in the 8th century AD. Its four main schools are Nyingma, Kagyü, Sakya and Gelug. The Karmapa line of reincarnations within Kagyü began in 1110 AD with the birth of the first Karmapa, Dusum Khey Khyenpa. The latest of the undisputed reincarnations was in 1924 with the birth of the 16th Karmapa Rangjung Rigpe Dorje.
[11] The difference between the parties and within Tibetan Buddhism is fundamental. Urgyen Trinley had been recognised as 17th Karmapa by all four of the Eminences whom the plaintiff and the trustees acknowledge to be of high authority within the lineage. Shamarpa Rinpoche (the Shamarpa), described by the plaintiff as His Holiness and by the trustees as His Eminence, however asserts that his own initial recognition of Urgyen Trinley was secured without full information and in circumstances of pressure and that the true 17th Karmapa is in fact Thaye Dorje. HE Tai Situ Rinpoche and HE Goshir Gyaltsab Rinpoche maintain recognition of Urgyen Trinley. The fourth, HE Jamgon Kongtrul Rinpoche, is no longer alive.
[12] There are pending in the Republic of India proceedings brought by the Karmapa Charitable Trust (established by the 16th Karmapa by deed executed in Sikkim on 23 August 1961) and the Shamarpa and others as plaintiffs against the state of Sikkim, HE Goshir Gyaltsab Rinpoche and others as defendants, claiming that those defendants from and since 1993 have wrongly excluded the plaintiffs from
the Rumtek Monastery. An interlocutory aspect of the case was determined by the Supreme Court of India on 5 July 2004.
[13] The Dalai Lama, now resident in India, has recognised Urgyen Trinley as the 17th Karmapa. The arguments extend to his role and status within Karma Kagyü.
The position of the plaintiff in New Zealand
[14] The plaintiff pleaded that he was and is spiritual director of the New Zealand Karma Kagyü Trust appointed by the 16th Karmapa in 1979. He visited New Zealand in 1979, 1983, 2003 and 2004. While the defendant’s pleading denied both the plaintiff’s standing to bring the proceedings and his appointment, neither defence was pursued in evidence and argument. He is a Buddhist priest of Kathmandu, Nepal, and he has monasteries in Tibet, Nepal, and India, a Dharma Centre in Malaysia, and is a spiritual director of centres and trusts in Australia, Russia, Hong Kong, Singapore, Hungary, France. His evidence that he is the duly appointed spiritual authority in respect of the Karma Choeling Buddhist Monastery at Kaukapapaka, was not seriously challenged, nor was it denied that the 16th Karmapa sent him to New Zealand and Australia in 1979 to establish Karma Kagyü centres on his behalf and to be their spiritual director. Following his visit, the New Zealand trust was established and a monastery erected on land donated to the trust. The two Karma Choeling Lamas, the defendant Lama Shedrup and Lama Samten who left New Zealand after certain allegations against him by a member of the Karma Choeling community, were appointed by the plaintiff from his monastery in India. His evidence that he was the person given authority to provide spiritual direction in accordance with the Karmapa’s wishes, is consistent with the then trustee’s resolution of 5 December 1993 (Appendix A). The trustees assert that the plaintiff has taken himself outside the hierarchy of Karma Kagyü. The plaintiff denies that claim and asserts the reverse: that it is the trustees who have done so.
The issues
[15]The points at issue are:
a)the nature of the authority the plaintiff was given by the 16th Karmapa;
b)whether his appointment survived the death of the Karmapa;
c)whether he has been validly dismissed;
d)whether his dismissal of the trustees was effective
e)what order should now be made.
The nature of the authority given to the plaintiff by the 16th Karmapa
[16] Mr Hursthouse, who was involved in the construction of the monastery and a long-term trustee, expressed an understanding that the spiritual director named in the trust deed was Lama Karma Trinley Rinpoche, and the ultimate spiritual director, the Karmapa. He recorded that the plaintiff was appointed by the 16th Karmapa sometime in the 1970s to represent him in the Australasian region. He had no recollection of the 1993 resolution naming the plaintiff, although the minutes record that he seconded it, and he did not deny their validity. He said that
Important decisions to be made [by the trust] were referred to Lama Karma Thinley Rinpoche in the very early days, then to [the plaintiff] and later to He Tai Situ Rinpoche. In this way each has fulfilled the role of spiritual director practice.
[17] This evidence is however consistent with the plaintiff’s claim. There is nothing in the appended notes of interview with the 16th Karmapa inconsistent with that position.
[18] Mr Geoffrey Wells, a respected member of the Criminal Bar and long-term member of Karma Kagyü, was the author of the New Zealand trust deed. He was
chairman of the trust board when the 1993 resolution was passed and stated his recollection that the plaintiff had the authority of the 16th Karmapa to exercise the power sought.
[19] Mr Hope, the chairman of the board of trustees, stated that he has always believed that the title of Spiritual Director was honorific but does not deny that the plaintiff was spiritual director.
[20] The Venerable Chojei Lama Karma Shedrup Chogi Senge Karton (Lama Shedrup) and the Venerable Lama Kama Samten were appointed in 1980 by the plaintiff on behalf of the 16th Karmapa as resident teachers as the Kama Choeling Buddhist Monastery. In 1981, Lama Shedrup became a trustee of the New Zealand trust. Lama Shedrup and Lama Samten had been residents at the plaintiff’s monastery at the Tibetan Refugee Camp in Mainpat, India. Lama Shedrup deposes that he received support from the plaintiff to come to New Zealand and that the plaintiff met with the 16th Karmapa who blessed Lama Shedrup and Lama Samten and gave them final instructions regarding their duties in New Zealand. They said that at no time was he advised by the Karmapa that the plaintiff was spiritual director or had any official role at the Karma Choeling monastery beyond that of a visiting teacher.
[21] Lama Shedrup described the unanimous recognition by the New Zealand trustees since 1992 of Urgyen Trinley Dorje as the 17th Karmapa and spiritual head of the Kagyu lineage and of the New Zealand trust. He said that in Tibetan society Urgyen Trinley Dorje is accepted by the vast majority; that in almost every monastery, nunnery and in most Tibetan’s houses there are pictures of both the Dalai Lama and him and everyone celebrates his birthday. He stated that since the enthronement in 1992 of the 17th Karmapa the international headquarters and office has been regularly informed of the activities of Karma Choeling and the Trust by himself and Lama Samten. He described the plaintiff’s invitation to New Zealand by the trustees in 1993. At that stage the plaintiff supported the trustees’ decision to recognise Urgyen Trinley Dorje as the 17th Karmapa. He said that he does not believe that that the plaintiff has ever advised the trustees or its resident lamas that Urgyen Trinley Dorje should not be recognised as the 17th Karmapa. He stated that
the plaintiff has given no instruction or advice in any capacity, spiritual or otherwise, to the trustees at any time apart from his two brief visits to New Zealand. He asserted that the purported amendment of the trust deed in December 1993 to recognise the plaintiff as the spiritual director of the trust was never approved by the 17th Karmapa, Urgyen Trinley Dorje, or the IKHQ office of the Karmapa.
[22] He stated that the plaintiff has for several years not been accepted in the wider Karma Kagyü community or been invited to its meetings. When advised in 2002 that the plaintiff was to visit New Zealand he and Lama Samten received advice from the IKHQ that the trustees were not to be involved with or to host the plaintiff.
[23] Bardor Tulku, describing practices in New York, advises that its Karma Kagyü centre has never had a spiritual director. He expressed the opinion that were such appointment made it would refer to spiritual guidance and carry no temporal powers unless that person were also a trustee. The plaintiff did not challenge his statement that the appointment could be taken away by a succeeding Karmapa.
[24] There can be no real doubt as to the validity of the plaintiff’s original appointment. But the trustees’ claim that he has lost that appointment raises questions of formidable difficulty.
The role of this Court
[25] A point that arises immediately is that this Court, remote from the major centres of Tibetan Buddhism, is not an obvious or convenient forum for pronouncing on a fundamental spiritual as well as leadership issue, within the Kagyüpa lineage, which has engaged the attention of spiritual and temporal authorities within those major centres. Some of the argument was directed to the importance of the original seat of the Kagyüpa lineage in Tsurphu and of its new seat in Rumtek.
[26] At the beginning of the hearing on 29 November 2004 I issued the following ruling
[1] The immediate issues in this case concern the entitlement to control the charitable trust which has responsibility for the temporal aspects of dealing with the trust property at Kaukapakapa. But the raison d’être of the trust is not temporal but spiritual and the spiritual aspects of the role of the New Zealand Kama Kagyü Trust are inextricably bound up with the religious lineage of Tibetan Buddhism.
[2] It is the contention of the defendants that the 16th Karmapa has been superseded in point of law, fact and most importantly religion by the 17th His Holiness Urgyen Trinley Dorje and that in consequence the denial by the plaintiff that a 17th Karmapa has been selected is misconceived. Accordingly the plaintiff’s claim to intervention in the affairs of the New Zealand administration should not be supported by the Court.
[3] The plaintiff’s position is one of the greatest respect to His Holiness. But [he takes] the position that whether it is he who is the 17th Karmapa or whether the 17th Karmapa is Thaye Dorje is a matter as yet unresolved in the estimation of a very substantial number of the faith. There is a difference between counsel as to the respective numbers of adherents to the respective positions.
[4] The defence assert that by far the greater number support His Holiness Urgyen Trinley. That position is not accepted by the plaintiff but on any view there is a very large number extending into the high millions of Buddhist people throughout the world who are deeply concerned by the question of the identity of the 17th Karmapa.
[5] It should perhaps be emphasised that this Court is acutely aware of the sensitive nature of these issues. One is talking about one of the world’s greatest religions and judicial notice may be taken of the fact that its precepts may be said to be incompatible with the polarities and vehement differences that are the reason for the existence of a court of law.
[6] While there is no doubt that the New Zealand Court has responsibility for dealing with applications made under the New Zealand Charitable Trusts Act 1957 and the Trustee Act 1956, as the intitulment of the plaintiff’s proceedings records and the more so where there is tangible property in the form of the temple and its precincts at Kaukapakapa, in matters of religion the Court will take the very greatest of care to consider whether it is an appropriate forum for the resolution of the dispute.
[7] In some cases it must accept that responsibility. The best known case is perhaps that of the General Assembly of the Free Church of Scotland v Lord Overtoun [1904] AC 515 which concerned the doctrines of the Church of Scotland. Here it is a fortuity that the New Zealand Court should be seized of issues involving Tibetan Buddhism. Other states notably … the People’s Republic of China [now including Tibet] and the Republic of India are among the great states where substantial numbers of people of the Tibetan Buddhist faith are to be found.
[8] A further factor is that whereas New Zealand domestic law tends in construing trust documents to focus on the intentions of the settlor, in the present case the factual matrix includes the adoption of the precepts of Kagyüpa Tibetan Buddhism with its consequential reference outside New Zealand.
[9] As I understand the position at this early stage of the case there is an element of hierarchical status which, if not directly analogous to the arrangements within the Church of Rome, gives rise to a question as to where ultimate authority resides in relation to decision making over these vital issues. To look at them even for the purposes of establishing a factual matrix within which the trust documents are to be construed requires the very greatest care.
[10] I have therefore raised for counsel’s consideration the topic of forum conveniens: what court (if any) in what state is the most appropriate to give the leading decisions in this sphere. In commercial matters it has become commonplace for this Court to act in aid of substantive proceedings being conducted elsewhere in today’s globalised world. It is of great importance for each court and each jurisdiction to form some view of where it fits into the global scene and neither to usurp authority that it ought not to possess or to flinch from making decisions that are required for the effective removal of the distress that unresolved disputes inevitably entails.
[11] For these reasons the cross-examination [by the plaintiff of four defence witnesses] will be conducted on a de bene esse basis: that the admission of the evidence will be provisional and I will rule as necessary upon it at the end of the case after all argument has been heard. What I have said about cross-examination of course applies equally to the use to be made of the affirmations that have been filed.
[27] Normally the role of a court is to deal with domestic disputes being those that arise within its own jurisdiction. If there is a foreign element that will be dealt with according to that part of the State’s domestic law known as the rules of conflict of laws or private international law.
[28] It is inappropriate in the determination of this case to discuss the positions taken by governmental authorities in the People’s Republic of China and the Republic of India, not because these are other than important but because this Court has no business pronouncing upon them. The principles are summarised in Air New Zealand Ltd v Director of Civil Aviation [2002] 3 NZLR 796 paras [49]-[63].
An apparent dilemma
[29] The present case requires consideration of more than the events at Kaukapakapa that precipitated this litigation and the perceptions of those in New Zealand whom the outcome will immediately affect. This Court must apply the law of New Zealand by determining the dispute as to how and by whom the purposes of the New Zealand charitable trust are to be given effect. But in reaching a decision concerning the New Zealand trust and its New Zealand property there is need to deal with an apparent dilemma.
[30] Since the essential point of difference between the parties to this litigation is whether the 16th Karmapa has been reincarnated and enthroned in the form of Urgyen Trinley, how can this Court resolve the local dispute without taking a position on the international dispute which both parties agree is not justiciable in New Zealand?
The principles for its resolution
[31] There is no existing principle of New Zealand domestic conflict of laws that is readily applicable to the present case which, concerning a tiny expanse of a massive canvas, must be dealt with in a manner compatible with the resolution of the major themes by others elsewhere. Guidance must be sought elsewhere.
[32] The first step to resolving the apparent dilemma is in my view the need for domestic courts to construe their own law as conformable with what is becoming a truly international system of conflict of laws principles.
[33] Joseph Storey employed the term jus gentium1. Its translation as general principles of private international law, not limited to English conflicts principles, has
1 In the context of personal property Story said of the rule that movables follow the person “A sense of general utility… must have first suggested the doctrine; and as soon as it was promulgated, it could not fail to recommend itself to all nations by its simplicity, its convenience and its enlarged policy… it has so general a sanction among all civilised nations that it may now be treated as a part of the jus gentium”: Conflict of Laws 8th ed (1883) 537-8 citing Lord Loughborough in Sill v Worswick (1791) 1 H Black 690 “It is a clear proposition not only of the law of England, but of every country in
been employed by the House of Lords in two cases reported last year2. Perhaps the best example in recent times of a search for an approach that will stand up better internationally than a narrow domestic rule has been the wide spread adoption of the Scottish practice of considering convenience of forum: even if our court does have jurisdiction, should it refrain from exercising it?3 That allows a court to take a broad and just view of how on the particular facts justice will best be achieved.
[34] In the case of New Zealand land and a New Zealand charitable trust the jurisdiction of this Court is indisputable. Mere unfamiliarity with the relevant concepts does not excuse a court from educating itself sufficiently to deal sensitively and justly with them, as indeed New Zealand courts are having to do in recognising Maori values. The decisions of the Privy Council in Pramatha Nath Mullick v Pradyumna Kumar Mullick (1925) LR 52 IA 245 and the English Court of Appeal in Bumper Development Corp Limited v Commissioner of the Police of the Metropolis & Ors [1991] 4 All ER 638, concerning respectively the legal personality of an Indian idol and the entitlement of a Hindu temple to sue in the English courts, illustrate the point.
[35] Moreover in the history of religion deep-felt difference resulting in litigation is no novelty. Where a case concerns civil rights related to property it is the duty of the ordinary courts to deal with them even if to do so requires investigating issues of religious doctrine: Long v Bishop of Cape Town (1863) 1 Moo 411, Forbes v Eden (1867) LR 1 Sc & Div 568, Scandrett v Dowling (1992) 27 NSWLR 483, 554 per Priestley JA.
the world where law has the semblance of science, that personal property… follows the law of the person.” Bloxham v Fayre (1883) 8 PD 101, 103-4 a century later took a similar approach.
2 In Société Eram Shipping Company Limited v Hong Kong and Shanghai Banking Corporation Limited [2004] 1 AC 260, 283 para 53 Lord Hoffmann spoke of “…the normal assumption… that [in certain specified circumstances] any foreign court, in accordance with general principles of private international law, would treat [a] debt as discharged.” [Emphasis added] See similarly on a choice of law issue Kuwait Oil Tanker Company SAK v UBS AG [2004] 1 AC 300, 304 para 5 per Lord
Bingham “English authority points towards that conclusion…[w]hile the House was referred to no foreign authority which could show international endorsement of that approach, such material as there is appears to support it rather than otherwise.”
3 Spiliada Maritime Corp. v Cansulex Ltd [1987] AC 460 followed in McConnell Dowell Construction Ltd v Lloyd’s Syndicate 396 [1988] 2 NZLR 257.
[36] But it is implicit in the authorities that a state court will adjudicate upon religious differences only to the extent that it cannot otherwise perform its function.4
4 The general principles were summarised by Venning J in The Anglican Catholic Church Inc v Holy Catholic Church (Anglican Rite) Trust HC AKLD CIV-2002-404-002751 M1577-IM02 26 June 2003 paras 25-31
[25] Turning to the ecclesiastical dispute, [counsel for the defendant] submitted that the proceedings concern a dispute between two church organisations and raise ecclesiastical matters of faith, doctrine, and liturgy, namely which organisation may be observing the proper constitution and canons dating back to incorporation of the first defendant trust. He submitted that any issue of interpretation of the trust deed would have to take into account these matters and that such consideration was beyond the jurisdiction of the Court and not a matter that the Court should determine or could interfere with.
[26] However, it is not enough to submit generally that the plaintiff’s claim raises ecclesiastical matters or will require consideration of ecclesiastical matters and use that as the basis for a submission that the Court has no jurisdiction. It is necessary to consider both the principle [counsel for the defendant] referred to and upon which his proposition was based and the actual issues in this case.
[27] The principle has been considered by the Courts on a number of occasions. It is sufficient for present purposes to refer to the following. The leading case is the case of the General Assembly of the Free Church of Scotland v Lord Overtoun... In that case the House of Lords considered religious doctrine and beliefs to determine whether trusts imposed upon property of the Free Church of Scotland were being observed. It is worth noting the brief summary of facts to that case. A minority of the Free Church of Scotland opposed the union of the Free Church of Scotland and the United Presbyterian Church. The minority of the Free Church sought declarations that property left to the Free Church could not be used by the resulting United Church joined group. The basis of their case was that the United Presbyterian Church held different fundamental beliefs which were to be recognised in the joined body and therefore to use the property to benefit those beliefs would be a breach of trust. During the course of the judgment the House of Lords examined the beliefs held by each group and concluded that the beliefs were different. It also examined the purposes for which the trust property was left to the Free Church. The Court found that the minority members held the property of the Free Church and that the property could not be applied to the joined groups as it was not a body consistent with the original purposes of the trust.
[28]In the course of his opinion Lord Davey stated:
“My Lords … I disclaim altogether any right in this or any other civil court of this realm to discuss the truth or falsity of any of the doctrines of this or any other religious association, or to say whether any of them are based on a just interpretation of the language of Scripture, or whether the contradictions or antinomies between different statements of doctrine are or are not real or apparent only, or whether such contradictions do or do not proceed only from an imperfect and finite conception of a perfect and infinite Being, or any similar question. The more humble but not useless function of the civil court is to determine whether the trusts imposed upon property by the founders of the trust are being duly observed. … The question in each case is, What were the religious tenets and principles which formed the bond of union of the association for whose benefit the trust was created? “
I am unaware of authority on whether a court which accepts it is the forum conveniens in terms of its immediate subject-matter – the charitable trust and the land – may properly conclude that it is not forum conveniens for all purposes. On 27 January 2005, in Gregg v Scott [2005] UKHL 2, Lord Nicholls observed
45… if the common law is to retain its legitimacy it must remain capable of development… The law must strive to achieve a result which is fair to both parties in present-day conditions. The common law’s ability to develop in this way is its proudest boast.
[37] In the absence of authority the case must be decided on principle. Here, where counsel agree that while having jurisdiction over the case I cannot pronounce on the basic dispute on which the parties are divided, I am satisfied that such conclusion is inevitable.
[38] In Overtoun’s case the Scottish courts, including the House of Lords as the final appellate court for Scotland, provided the only forum in which a deep-seated
[29] The distinction between those issues that the Court will not attempt to adjudicate on and those disputes between religious groups that the Court will adjudicate on has been recognised in a number of New Zealand cases…
[30] …in the decision of Marshall v The National Spiritual Assembly of The Bahai’is of New Zealand Inc, unreported (HC Auckland, M759/92, 10 March 2003, Randerson J) His Honour stated:
“[the authorities]… support the proposition that the Courts have traditionally shown a reluctance to intervene where purely spiritual or religious issues are at stake. Such matters are best left to the determination of the institutions of the church or other religious body in question. However, the authorities also show the Courts have been prepared to intervene where civil, economic, or proprietary rights are alleged to have been infringed.
In New Zealand, I need only refer to the recent decision of the Court of Appeal Mabon v Conference of the Methodist Church of New Zealand [1998] 3 NZLR 513 where the Court was considering whether a Minister of the Methodist Church was an employee of the Church. At 523, the Court stated:
‘Clearly, and reflecting the separation of church and state, Courts must be reluctant to determine what are at heart ecclesiastical disputes where matters of faith or doctrine are at issue. But the Courts will intervene where civil or property rights are involved and can be expected to analyse carefully any argument that conventional incidents of a recognised relationship such as work do not give rise to contractual rights.’”
[31] The position is that the Court does have jurisdiction to determine disputes between different religious groups. What the Court will not do is decide which group’s beliefs or practices are right or are to be preferred. However, the Courts will determine the rights of differing religious groups, particularly if called upon to enforce the objects and purposes of a charitable trust relating to a religious group.
dispute as to the property of the Free Church of Scotland could be resolved. It was accordingly necessary for those courts to consider in depth the doctrinal disputes on which the case ultimately turns. Fortunately there was no attempt to resolve those issues in the courts of New Zealand where many members of the Free Church had emigrated. In the event of such dispute one would have expected the New Zealand Court to have limited its involvement to the minimum required to secure order and to hold the position pending the definitive decision of the Scottish courts which were the forum conveniens.
[39] The question in this case is how this Court should approach these issues of such supreme importance where it is not the forum conveniens for resolution of the religious dispute. Self-evidently the most fundamental issue for the Kagyüpa lineage of Tibetan Buddhism must be determined elsewhere than in the New Zealand courts. Our role can be no more that the modest one of acting in a manner that is ancillary to the forum conveniens for that issue. Once the courts of that forum have pronounced the New Zealand courts may be expected to review the fortunes of this charitable trust with its indefinite life. In the meantime, as Cardinal Newman put it in his hymn “Lead Kindly Light”
…I do not ask to see
The distant scene; one step enough for me.
[40] In Armory v Delamarie (1722) 1 Stra. 504 a chimney sweep’s boy found a ring which he handed to the defendant jeweller for appraisal. The defendant resisted the boy’s claim for its return, asserting that the ring did not belong to the boy. The Court held that for the purposes of the litigation it was unnecessary to determine the issue as to who was the true owner. It was sufficient that between the parties the boy had the better title. So here, where this Court cannot determine who is the true Karmapa, it must in my view make its decision according to what has happened between the parties.
[41] To assess that it is necessary to elaborate the factual background and describe the parties’ respective cases.
The undisputed factual background and the competing claims
The hierarchy
[42] It is common ground that the 16th Karmapa headed a hierarchical institutional structure of Karma Kagyü. The differences between the parties extend to the very nature of the structure and are depicted in Appendices B and C, the first presented by the plaintiff and the second by the trustees.
The four Eminences
[43] According to the trustees’ chart, directly below the Karmapa are two distinct groups, one being the four Eminences. The plaintiff’s chart does not include that highly important group whom the trustees include in their outline of the administrative structure as in parallel to the General Secretary and the Administrator of Labrang. They were the four senior Karmapa Lamas, all disciples of the 16th Karmapa, and representatives of major interest within the Karma Kagyü lineage.
[44] The senior Eminence is the Shamarpa - HH Shamarpa Rinpoche Mipham Chokye Lodru, known as the Red Hat Lama (as the Karmapa has been referred to as the Black Hat Lama). From the late 14th century the primary responsibility for recognising and enthroning the Karmapa normally belonged to the Shamarpa. There was an exception in the early 16th century and there were two cases when the Shamarpa had died at about the same time as the Karmapa so there was no adult Shamarpa available to take responsibility. For two centuries from the 1790s the Lahasa regime prohibited the recognition of further Shamarpa and the responsibility for recognising the Karmapa incarnation is said to have devolved on the most senior Lamas having connections to the deceased Karmapa.
[45] In the 1950s, the 16th Karmapa promoted the Shamarpa and secured the Dalai Lama’s agreement to withdraw the ban on the recognition of the Shamarpas. He is described by the Senior Abbot, Khenpo Chodrak Thenphel, as “His Holiness Shamarpa Rinpoche, the Red Hat Lama, who is second only to Karmapa, the
Black Hat Lama”. He is one of the few who accompanied the 16th Karmapa when he left Tibet for India in 1959 and was granted by the Chogyal (King) of Sikkim the land at Rumtek on which was developed the Dharma Chakra Centre. There are housed precious belongings including the Black Hat or Crown brought by the 16th Karmapa from Tibet.
[46] The next senior Eminence, Situ Rinpoche, of which Tai Situ Rinpoche is the present incarnation, often but not always took a leading role in recognising the Karmapa incarnation. The withdrawal of the ban on the recognition of the Shamarpas weakened the position of the Situ Rinpoche within the order and enhanced that of the Shamarpa.
[47] The third and fourth Eminences are HE the late Jamgon Rinpoche and HE Goshir Gyaltsab Rinpoche, one of the defendants in the case brought in the Indian Courts by the Karmapa Charitable Trust and the Shamarpa.
The competition among the Eminences
[48] The competing claims to authority involve the Eminences. The plaintiff contends that since 1985 institutional direction has been given on behalf of the Karmapa by the Karmarpa Charitable Trust which has been based at the temple of the Shamarpa at Gangtok since 1993.
[49] The trustees contend that it is given at Rumtek by the 17th Karmapa who is recognised by Tai Situ Rinpoche and Gyaltsab Rinpoche and that administration is performed by the second distinct group shown on the trustees’ chart directly below the Karmapa - the General Secretary Tenzing Namgyal and the Administrator of Labrang or Household. The IKHQ is shown as headed by the General Secretary and directing monasteries overseas and centres around the world while the General Secretary and administration of Labrang has responsibility for the monk and lay communities.
[50] The death of the 16th Karmapa on 5 November 1981 was followed for a time by an arrangement for a rotating Regency agreement made at the suggestion of the
Karmapa’s General Secretary Dhamchoe Yongdu to take over interim leadership of Karma Kagyü. The Shamarpa was the first Regent. Following the death of Dhamchoe Yongdu in December 1982 he was replaced as General Secretary by Topga Yulgyal, a cousin of the Shamarpa. The Council of Regents was dissolved in 1984.
[51] On 26 June 1985 there occurred the birth of Apo Gaga, later known as Urgyen Trinley Dorje. In 1989 Tai Situ produced a letter said to be the 16th Karmapa’s prediction of Urgyen Trinley as his reincarnation.
[52] On 17 March 1991 there was a meeting of the board of the Karmapa Charitable Trust. The members present included the Shamarpa, Jamgon Kongtrul Rinpoche and Goshir Gyaltsab Rinpoche. The minutes recorded that Tai Situ Rinpoche was not present. A resolution spoke of undesirable impressions being created with regard to the important question of the reincarnation and the function of the trust. It was recorded that although the identification of the reincarnation was still pending the enthronement ceremony must take place at the Dharma Chakra Centre, Rumtek, which is the main seat of His Holiness. It was resolved that periodic reviews should be made of the prevailing situation regarding the functioning of the Karma Kagyü centres abroad for which the overall control rests with His Holiness or the trust.
[53] On 18 March 1991 Topga Yulgyal as General Secretary to HH Gyalwa Karmapa gave notice on behalf of IKHQ explaining the procedure for the making of donations to the Karmapa Charitable Trust. It recorded that through IKHQ His Holiness directed the functions and activities of his monasteries and centres all over the world.
[54] On 19 March 1992 the prediction letter was opened at a meeting of the Regents at Rumtek. The following month HE Jamgon Kongtrul Rinpoche died in a car crash. In May 1992 the Regents met with the Dalai Lama and according to the trustees in March 1992 a search party discovered Urgyen Trinley Dorje as the Karmapa’s reincarnation. On 15 June 1992 Urgyen Trinley arrived at Tsurphu, the ancient seat of the Karmapas.
[55]On 17 June 1992 the Shamarpa wrote a letter in the following terms
On March 19th 1992 at a meeting with Jamgon Rinpoche, Gyaltsab Rinpoche and myself, Situ Rinpoche presented a hand-written prediction letter from his protection pouch, claiming it was the written instructions of HH the 16th Karmapa (indicating his reincarnation). I had some doubts (and the letter’s authenticity). At this point, I relied on Situ Rinpoche (giving me correct information about HH the Dalai Lama’s decision). Relying on our confidential discussion, I go along with the decision made by HH the Dalai Lama that a reincarnation has certainly been found as reincarnation of HH the Gyalwa Karmapa. Hence, I suspend my demands such as having the hand-written prediction letter being subjected to a (forensic) test.
On 22 June 1992 Tai Situ Rinpoche recognised Urgyen Trinley as the 17th Karmapa. On 30 June 1992 the Dalai Lama issued the Buktham Rinpoche, his official seal of approval.
[56]On 18 July 1992 the Shamarpa wrote to Situ Rinpoche stating
I am writing to you regarding the agreement which I offered in favour of HH the Dalai Lama.
He said that the agreement letter had been mistranslated into English and he forwarded the translation reproduced at para [55]. On 27 September 1992 Urgyen Trinley Dorje was enthroned as the 17th Karmapa at Tsurphu Monastery.
[57] Between 30 November and 3 December 1992 Tai Situ Rinpoche held an international Kagyü conference at Rumtek. He removed Topga Yulgyal as General Secretary, replacing him with Tenzing Namgyal as Assistant General Secretary and Personal Secretary to the 16th Karmapa.
[58] At the beginning of Yarney (the rainy season retreat) in June 1993 monks supporting the Shamarpa attempted to close the Rumtek Monastery. The Sikkim Government sent police to restore order and banned Topga and the Shamarpa from Sikkim. On 2 August 1993 the Rumtek Monastery was seized by supporters of Situ Rinpoche and Goshir Gyaltsab Rinpoche. Court proceedings were issued by the Shamarpa and Topga to seek control of Karmapa property including Rumtek.
[59] On 26 January 1994 the Shamarpa announced Thaye Dorje as a claimant to the Karmapa’s throne and on 17 March 1994 the Shamarpa recognised Thaye Dorje.
He was enthroned by the Shamarpa at Kibi in Delhi and recognised by the Karmapa Charitable Trust as 17th Karmapa.
[60] On 25 December 1996 Thaye Dorje was enthroned at the plaintiff’s monastery at Delhi.
[61] On 28 December 1998 the Karmapa Charitable Trust issued proceedings in India for the recovery of Rumtek.
[62] On 20 June 2000 the Shamarpa handed the Dalai Lama a letter suggesting he recognise two Karmapas. The Dalai Lama replied on 14 July 2000 refusing to do so.
[63] The events of June 1993 with the expulsion of the Shamarpa from Rumtek and the subsequent litigation appear both to reflect and to contribute to a deep rift between the Shamarpa and the other two surviving Eminences. It gave rise to the competing institutional structures within Karma Kagyü: the Karmapa Charitable Trust and the IKHQ.
The competing institutional structures
[64] The plaintiff’s chart depicts as below the Karmapa in religious matters Nedo Rinpoche, on whose affirmation the plaintiff relies. He accepts that Nedo Rinpoche’s position is beneath that of the Eminences which do not appear upon it. He is the Dorje Loppon and head of the religious order of Lamas and Monks who form part of the administration of the Karmapa. He is the reincarnation of the Nedo Rinpoche line and was recognised by the 16th Karmapa. He is in charge of all the Vajrayana practice and ritual in each of the monasteries of the Karmapa. He holds the highest rank in the Karmapa’s Monastery, below Special Spiritual Leaders and Reincarnated Lamas. His monastery is in Qinghai, Tibet, China. But with the exception of a three year break to perform the traditional Tibetan meditation retreat he has served as the Vajara Master of the Rumtek Dharma Chakra Centre at Rumtek, the seat of the late 16th Karmapa, since 1981. He describes the 16th Karmapa’s organisation chart for the office established to co-ordinate Buddhist centres abroad with the Karmapa himself at the head. The second in command is
known as managing director, an office to be held ex officio by the General Secretary of the Karmapa’s total administration. It was held by Damchoe Yongdu and later Topga Rinpoche. The number three position in the IKHQ that of General Secretary to which Tenzing Namgyal was initially appointed but from which he was dismissed by Topga Rinpoche. Nedo Rinpoche denies that the defendants’ witness Bardu Tulku is a Rinpoche of the Karma Kagyü lineage. Nedo Rinpoche also denies the authority of the Dalai Lama within the lineage of the Karma Kagyü school. He is of the view that Thaye Dorje is the established Karmapa.
[65] Ranked below the Dorje Loppon within the religious hierarchy is the Khenpo (or senior abbot) of the Dharma Chakra Centre, Khenpo Thodrak Thenphel, who accompanied the 16th Karmapa when he left Tibet for India in 1959 and is at present in New Delhi. His predecessor is the trustees’ witness Thargo Lama (para [78] below).
[66] On the lay side, in February 1981 the 16th Karmapa opened the Kagyüpa International Headquarters, appointing as managing director Damchoe Yongdu, the General Secretary of Rumtek. The Karmapa directed that in the absence of Damchoe Yongdu or in the absence of the Karmapa one of the four major Tulkus (incarnation) Shamar Rinpoche, Situ Rinpoche, Jamgon Kongtrul Rincpoche and Gyaltsab Rinpoche would act as managing director. The General Secretary of the new office appointed by the Karmapa was Tenzing Namgyal. Following Damchoe Yongdu’s death Topga Yulgal was appointed to succeed him.
The plaintiff’s case
[67] According to the plaintiff the factor critical to recognition of a new Karmapa is his acceptance by the Karmapa’s administration. The plaintiff says that the administration is now that of the Karmapa Charitable Trust; the trustees that it is the IKHQ.
The Karmapa Charitable Trust
[68] The Shamarpa described the establishment by the 16th Karmapa in 1961 in accordance with Indian law of the Karmapa Charitable Trust and appointed trustees to run the affairs of the seat of the Karmapa and affiliated monasteries and centres until the 17th Karmapa came of age.
[69] Until his death, the 16th Karmapa was the sole trustee. The deed of trust provided for the appointment as trustees of seven named persons. At its meeting on 19 May 1985, the trustees resolved to request HH Shamarpa Rinpoche, Tai Situ Rinpoche, and Kongtrul (or Jamgon) Rinpoche (now deceased), to consider who should be considered for the three vacancies in the trust and requested they and Gyaltsab Rinpoche attend trust meetings. The day to day administrative control of the Dharma Chakra Centre was conferred upon the General Secretary, Mr Yongdu.
[70] The Shamarpa and the other three Eminences were appointed by the General Secretary of the 16th Karmapa’s administration to act as Regents to perform a search for the 17th Karmapa. There appears to be no issue as to the exercise by the General Secretary of that function. In 1992, 11 years after the death of the 16th Karmapa, HE Tai Situ Rinpoche stated that he had discovered a prediction letter written by the 16th Karmapa. According to the Dorje Loppon, who next to the Karmapa is the head of the religious orders of Karma Kagyü, the following is the correct translation of a statement by the Shamarpa on 18 July 1992
On March 19th, 1992 at a meeting with Jamgon Rinpoche, Gyaltsab Rinpoche and myself, Situ Rinpoche presented a hand-written prediction letter from his protection pouch, claiming it was the written instructions of
H.H. 16th Karmapa. I had some doubts. At this point, I rely on Situ Rinpoche (giving me correct information about H.H. the Dalai Lama’s decision). Relying on our confidential discussion, I go along with the decision made by H.H. the Dalai Lama that a reincarnation has certainly been found as reincarnation of H.H. the Gyalwa Karmapa. Hence I suspend my demands such as having the handwritten prediction letter being subjected to a (forensic) test).
[71] There seems to have been at least an acquiescence by the Shamarpa in the acceptance of Urgyen Trinley as the reincarnation of the 16th Karmapa. The Khenpo described occurrences in late 1992, including the removal from his post as General
Secretary of the Topga Rinpoche and his replacement by Tenzing Namgyal, alleged law and order problems within the Dharma Chakra Centre, alleged harassment, and other events which were said to have forced the trust and its the administrative staff to leave and resulted in proceedings against the Sikkim Government. It is unnecessary to rehearse these matters.
[72] Subsequently the Shamarpa withdrew his recognition. He deposed that his letter of 18 July 1992 was written in extraordinary and threatening circumstances. He said he had considered that the only way to avoid widespread violence and injury was to provide this letter. It was he said given simply to defuse an explosive situation.
[73] At a meeting held on 11 June 1996 the trustees of the Karmapa Charitable Trust accepted Thaye Dorje as the 17th Karmapa. The minutes of that meeting record the presence of the Shamarpa and three other trustees and the apology of a fifth. The minutes record a collective decision of the recognition of His Holiness Trinley Thaye Dorje as the authentic reincarnation of the 16th Karmapa. The Shamarpa states that
For myself that is sufficient but I acknowledge that for very many Kagyu disciples the final recognition will not come about until the person who is in fact the 17th Karmapa is enthroned at Rumtek and undergoes the black hat ceremony.
In his declaration in this proceeding of 12 November 2004 the Shamarpa records that he has recognised Thaye Dorje as the 17th Karmapa. He states “Personally I believe that he is the 17th Karmapa and I recognise him as such.”
The evidence of the Dorje Loppon
[74] The Dorje Loppon states that he believes that Thaye Dorje is the established Karmapa. He has been recognised by the Shamarpa, the Karmapa Charitable Trust, which he states is the legal administration of Rumtek Monastery and the Karmapas’ affairs, the Karmapa’s own Kagyu school, and he denies that the Dalai Lama has spiritual authority: the previous authority of the Dalai Lama was temporal as King of Tibet which is no longer, he says, of relevance.
The evidence of the Khenpo
[75] The Khenpo (senior abbott) of the Dharma Chakra Centre Rumtek Monastery at present living in New Delhi, Khenpo Chodrak Thenphel, accompanied the 16th Karmapa when he left Tibet for India in 1959. In 1991 he was confirmed as Kenchen by the Karmapa Charitable Trust which he states had taken from the administration of the properties of the Karmapa following the death of the 16th Karmapa. He states that HH the Shamarpa the Red Hat Lama is second only to HH Karmapa the Black Hat Lama and has identified HH Trinley Thaye Dorje as the 17th Karmapa in terms of the ancient Kagyu tradition. He records that a large majority of followers of Karma Kagyü lineage worldwide firmly believe HH Trinley Thaye Dorje is the 17th Karmapa and their root guru.
Other witnesses
[76] There are other witnesses, not least the plaintiff himself, who support his case. But in view of my conclusions as to justiciability there is no advantage in recounting evidence beyond that of and about the great leaders who have supported each side and Professor Samuel, who is independent.
The trustees’ case
Discovery and enthronement of Urgyen Trinley at Tsurphu with the plaintiff’s participation
[77] The trustees’ case is that Urgyen Trinley has been duly discovered, recognised by the Dalai Lama, recognised by the Shamarpa and enthroned at Tsurphu at a ceremony in which the plaintiff participated. They rely on a different translation of the Shamarpa’s document of 17 June 1992. Their case is supported by other great leaders including the Dalai Lama. Like the plaintiff their witnesses include people of the highest standing.
The evidence of Heda Thago Lama
[78] Heda Thago Lama (Kinchin Thrangu Rinpoche, who was the predecessor of Kinpo Chodrak Thenphel as chief or senior abbot of the Karma Kagyü lineage), is one of the most senior and highly regarded Rinpoches and scholars in the lineage. He was the tutor to all four Eminences. He advises that the Dalai Lama is the spiritual and temporal head of Tibetans and that in June 1992 all three surviving regents visited the Dalai Lama who issued a formal letter of recognition the “Buktham Rinpoche” or “precious seal” recognising Urgyen Trinley Dorje as the 17th Karmapa, and states that on 27 September 1992 the two regents Situ Rinpoche and Gyaltsab Rinpoche enthroned Urgyen Trinley Dorje as the 17th Karmapa at Tsurphu Monastery, the Karmapa’s traditional seat in Tibet. The enthronement ceremony was attended by other high Rinpoches and many followers and overseas visitors but the Shamarpa was not present. He asserts that there were many days of ceremonies following the enthronement and that the procedure for the enthronement of the 17th Karmapa was followed correctly. He advises that, although the Dalai Lama’s recognition is not necessary for all Tibetan incarnate Lamas, it is necessary for the very important Lamas or Tokus and that indeed the Shamarpa himself was recognised by the Dalai Lama at the request of the 16th Karmapa and he states that in January 1994, the Shamarpa announced that a different incarnation of the Shamarpa in the form of Thaye Dorje had been found and that the Shamarpa sought recognition of him from the Dalai Lama but the Dalai Lama declined to accept him.
[79] Thago Lama says that the other heads of traditions of Tibetan Buddhism do not recognise Thaye Dorje as the 17th Karmapa. He states that the black vajra crown or Black Hat is not essential to the enthronement of a Karmapa.
[80] He says that in December 1999, the 17th Karmapa (in the form of Urgyen Trinley Dorje) left Tibet and in January 2000 was welcomed in India by the Dalai Lama where, after consulting with senior Lamas in the Karma Kagyü tradition, Situ Rinpoche and Gyaltsab Rinpoche nominated Heda Thargo Lama as the chief tutor to the 17th Karmapa. Thago Lama’s evidence is that the IKHQ is the international office for the Karmapa.
The evidence of Bardor Tulku
[81] Bardor Tulku, a Rinpoche of the Karma Kagyü lineage, was trained as a Tulku at the Dharma Chakra Centre, the Rumtek Monastery in Sikkim, under the tutelage of the 16th Karmapa whom he accompanied on world tours. In 1977, he was asked to remain in New York at the Karma Kagyü Centre, where he continues to teach and work for the lineage. He said that the Shamarpa had originally not co-operated with the other Eminences to find the new Karmapa. He recounted the Dalai Lama’s confirmation of Urgyen Trinley Dorje as Karmapa. He said that in June 1992 at Rumtek Monastery the Shamarpa tried to interrupt a formal announcement of that confirmation by the other Eminences but the announcement was completed. He referred to the Shamarpa’s written statement of 17 June 1992 that he would not interfere with or dispute the recognition of Urgyen Trinley as the 17th Karmapa. But on 2 August 1993 he caused Tai Situ Rinpoche and Gyaltsab Rinpoche and other monks to be locked out of the shrine at Rumtek Monastery. He said that the Rumtek Monastery and other properties of the Karmapa have always been in the possession of and administered by the Tsurphu Labrang of the Karmapa. As the result of police intervention, the key was handed over to Tai Situ Rinpoche and Goshir Gyaltsab Rinpoche. On 26 January 1994, contrary to his undertaking of 17 June 1992, the Shamarpa made his announcement of the different incarnation of the 17th Karmapa. Bardor Tulku states that it was only when in 1998 the Shamarpa realised that the Dalai Lama was not going to change his mind that he and two other purported trustees of the Karmapa Charitable Trust filed the court proceedings.
[82] Bador Tulku Rinpoche states that when Urgyen Trinley Dorje achieved his majority by attaining 18 years on 26 June 2003, the council of seat holders ceased to have effect and they cannot now act on behalf of the Karmapa or the Tsurphu Labrang.
[83] He supports Urgyen Trinley Dorje and says that in India and Pakistan he has 99 percent support among the people, that almost every monastery follows him and that he is acknowledged by all the other lineages.
Other witnesses
[84] I have mentioned the evidence of Lama Shedrup. The trustees have filed many other affidavits, notably from the Chairman of the Board Mr Hope and from their other fellow trustees Ms Burchell and Ms Duckworth; from Dr Lodoe a teacher and On Site Manager at Karma Choeling; and from members of the Karma Choeling Monastery. They emphasise the initial acceptance of Urgyen Trinley as Karmapa by both the Shamarpa and the plaintiff and assert that they have removed themselves from the mainstream of Karma Kagyü. They offer criticisms of the plaintiff’s discharge of his functions in New Zealand and in other respects and emphasise the potentially grave consequences to the morale, finances and very identity of the Karma Choeling Monastery if the plaintiff’s claim succeeds.
[85] The honesty of their deep-seated belief that Urgyen Trinley Dorje is the 17th Karmapa, and that therefore the plaintiff’s claim is misconceived, is transparent from the affidavits and was emphasised in the courteous but clear responses to cross-examination of Mr Hope, Ms Burchell and Lama Shedrup. Mr Wells’ account of the agony of the dispute for fine and genuine people whose interest in Karma Kagyü is wholly principled and disinterested was deeply moving. An enquiry into the merits would require the Court to think long and hard before rejecting their contention of them and their powerful supporters, headed by two Eminences as well as the Dalai Lama who is respected by the plaintiff’s witnesses as he is by the world community.
[86] But for the reasons that follow, as in the case of the plaintiff so in the case of the defence there is no advantage in recounting the detail of the evidence.
A deep-seated and non-justiciable dispute
[87] No other witnesses were called for cross-examination. But for the reasons contained in the ruling made on day one, to have done so on the topic of whether there is a 17th Karmapa, and, if so, whether it is Urgyen Trinley or Thaye Dorje or whether he has not yet been identified, would have been purposeless since this Court
cannot, and would not attempt to, adjudicate upon the issue. It is sufficient to say that, notwithstanding the great respect due to those who assert the due identification and enthronement of Urgyen Trinley as the 17th Karmapa, it is beyond dispute that great leaders of the Karma Kagyü tradition, including the Shamarpa and the Dorje Loppon, are resolutely of a different opinion. There are very large numbers of believers on each side; I am in no position to make findings on the competing opinions as to the relative balance. The extent of common ground is limited to the fact of the cleavage between the two views.
[88] The evidence of Professor Samuel is that there was no clear and unambiguous mechanism for the selection of a reincarnate Lama. Recognition was rather the result of a combination of factors including recognition by senior Lamas of the previous Lama’s monastery or monastic order, enthronement if possible at the previous Lama’s monastery, being in effective control of the previous Lama’s monastery, receiving and being empowered to transmit the teachings associated with the previous Lama, being recognised and accepted by relevant external authorities, among whom the Dalai Lama would certainly count as significant, and being able to make an effective claim of being predicted by the previous Lama or otherwise endorsed by divinatory procedures. In the particular case of the Karmapas possession of the Black Hat and performance of the associated ritual is a significant marker.
[89] The role of the Dalai Lama is contested. According to the trustees his recognition of a prospective Karmapa is definitive.
[90] Professor Samuel expresses another view. He states that during the time of the 13th Karmapa, Tibet was ruled by the 7th Dalai Lama, the head of another school of Tibetan Buddhism, Gelugpa (yellow hat), who required the Kagyüpa school to seek the Dalai Lama’s seal of approval of the new Karmapa reincarnation. He deposes that for the followers of the Kagyüpa school who are not the subject of HH Dalai Lama, his words, although from a respected and eminent teacher, are advice rather than a binding decree from a higher authority.
Did the plaintiff’s appointment survive the death of the 16th Karmapa?
[91] Mr Fenton sought an amendment to the latest statement of defence to read “any authority given to the plaintiff expired upon the 16th Karmapa’s death”. Since the point was fully discussed in argument and there is no suggestion of prejudice the amendment is allowed.
[92] It is implicit in the argument that either New Zealand trustee law or an application of international principles of private international law requires such conclusion.
[93] In fact Bardor Tulku does not suggest that the death of the 16th Karmapa would itself terminate the plaintiff’s appointment.
[94] Mr Fenton submitted that the relationship between the 16th Karmapa and the plaintiff was analogous to irrevocable mandate or agency which was revoked upon the Karmapa’s death. He cited Re Williams, Williams v Ball [1917] 1 Ch 1 (authority to housekeeper to draw insurance; Coulls v Bagot’s Executor and Trustee Co Ltd (1967) 119 CLR 460, 491 per Windeyer J (agreement conferring grant of right to quarry and authority to pay monies arising to wife); Noonan v Martin (1987) 10 NSWLR 402 (authority to withdraw money from bank account); Olsson v Dyson (1970) 120 CLR 365, 388 per Windeyer J (oral direction that future payments of interest be made to wife); 1(2) Halsbury’s Laws of England Agency (1990) paras 182, 197. He cited the former principle now altered by statute that the death of an English monarch vacates Crown offices. 8(2) Halsbury’s Laws of England (1996) paras 557, 902 and 903 which has however now been “greatly changed”. He further cited the principle that contracts of a purely personal nature cannot be assigned by operation of law and are discharged upon the death of a party: 6 Halsbury’s Laws of England (1991) para 77. Alternatively he submits that these principles provide the legal background to the plaintiff’s claim to a continuing authority under the trust deed and militate against a submission that the authority continued from 1979 to 2004.
[95] I do not accept these submissions. The plaintiff’s appointment was in my opinion to a status which, while revocable by a Karmapa or no doubt during an inter regnum by an authority lawfully exercising the status of a Karmapa, must be presumed to continue indefinitely. There is nothing in the deed and no authority supporting the argument that in point of New Zealand trustee law the plaintiff’s role terminated. The consequence of an implied termination would presumably extend not only to the plaintiff but to those like Lama Shedrup whom the plaintiff had appointed in this and other states in exercise of delegated authority from the 16th Karmapa. The consequences would be chaotic.
[96] Nor is the defendants’ case advanced if one takes the more expansive approach of looking at principles of private international law. No authority was cited that an idiosyncratic incident of an abandoned principle of English constitutional law is of general application. Indeed Bardor Tulku did not suggest that the death of the 16th Karmapa would itself terminate the plaintiff’s appointment.
Was the plaintiff validly dismissed? Was his dismissal of the trustees effective?
[97] The remaining questions – whether the plaintiff had been validly dismissed and whether his dismissal of the trustees was effective – may be considered together.
The events of March 2004
[98] Lama Samten resigned as a teacher in the face of allegations made against him. Following representations to him the plaintiff decided to visit New Zealand, arriving on 17 March 2004. Having on his visit the previous year been kept at arm’s length by the trustees he took legal advice and arrived at the Kaukapakapa monastery with both a number of supporters and a locksmith. Following a confrontation with Lama Shedrup and his supporters, in which Mr Wells played an admirable mediatory role, the police were called but declined to become actively involved. The plaintiff says that an accord was reached to enable the plaintiff as well as Lama Shedrup to live at the monastery although the plaintiff would not be teaching. The defendants
deny Mr Wells’ authority to speak on behalf of the trust and that there was any agreement. I find it unnecessary to resolve the difference.
[99] Nor do I find it necessary to elaborate the circumstances in which the following day the chairman of the trustees and others in turn forced entry to the monastery and issued purported trespass notices to the plaintiff and his supporters. The plaintiff responded by issuing notices purportedly removing the trustees from their office. For the next fortnight although the monastery was open to the public the gates were locked and guarded by those supporting the trustees and Lama Shedrup.
The interlocutory proceedings
[100] On 1 April 2004 on an interlocutory application in the present proceeding Venning J determined that the monastery should be available for the purposes of the trust including teaching by both groups. He therefore made an order appointing the Public Trust as manager and administrator of the New Zealand Karma Kagyü Trust for the purpose of managing and administering the property in the best interests of the objects of the trust until further order of the Court. He authorised the Public Trust to permit the plaintiff and two supporters to occupy the living quarters known as “Rinpoche’s Room” above the temple at Karma Choeling Buddhist Monastery. He also authorised the Public Trust to permit Lama Shedrup to live at the monastery in the room that he had occupied until then. He directed the Public Trust to make arrangements to ensure that the interests represented by the plaintiff and the defendants had equal use of the temple and other monastery facilities for their religious and teaching purposes pending the substantive outcome of the proceeding.
[101] On 17 November 2004 France J delivered a reserved judgment on an application by the plaintiff for orders regarding access to and the use of the trust property. The application related to the direction to the Public Trust to make arrangements to ensure the parties’ interests have equal use of the facilities for religious and teaching purposes. The plaintiff said that the Public Trustee had been unable to make such arrangements and so the interests represented by the plaintiff were being prevented from having equal use of the monastery facilities for their
religious and teaching purposes. The application was opposed by the trustees on the grounds that the orders sought were unnecessary and by the Public Trustee on the grounds that the orders sought would be unworkable.
[102] Mr Maxwell is the General Manager Charitable Services Division of the Public Trust at Auckland. He expressed the view that the parties would not work co-operatively together and that a final solution would be possible only once the issue of the 17th Karmapa had been resolved substantively.
[103] France J recorded that while the parties’ level of distrust was high both expressed some willingness to meet in some form or another with the substantive fixture pending later in the month and concluding that the thrust of Venning J’s orders had largely been met. She essentially left Venning J’s orders unaltered.
Approach of the Court
[104] The evidence of the chairman of the trustees, Mr Hope, and a fellow trustee, Mrs Burchell, and that of Lama Shedrup, witnesses for the trustees called for cross-examination, satisfies me that it is impracticable for this Court to put in place a regime that would share access to and control of the premises and the trust assets in a manner on which the parties cannot agree. It is necessary to make a choice between the parties.
[105] For the reasons already given that cannot be done by judgment of this Court purporting to pronounce upon where the truth lies as to the identity of the 17th Karmapa. Here, just as occurred in Armory v Delamarie, the issues must be resolved as between the immediate parties to the litigation.
[106] But how is that to be done? Each of the parties – the plaintiff as spiritual director and the defendants as trustees – were duly appointed.
The plaintiff’s contention as to status quo
[107] The defendants emphasise that in the time of that resolution the plaintiff appeared to be supporting Urgyen Trinley Dorje. There can be no doubt that at the time the deed was executed and at the time of the purported amendments in 1993 the plaintiff was not only the duly appointed spiritual director of the New Zealand trust but he was accepted as such by the then trustees. Their position was as recorded in Appendix A. There is force in Mr Fenton’s submission that the resolution of 5 December 1993 was ultra vires as inconsistent with art. XII because it failed to recognise the potential removal of the plaintiff by either a Karmapa or person or body authorised by the Karmapa to do so. But art. XII makes plain that the point of reference for the trustees is the Karmapa. To distinguish between spiritual and temporal authority, as might be legitimate in other contexts, is inconsistent with the basic precept of the Karma Kagyü that both are the responsibility of the Karmapa and, by delegation, of his representatives. While clauses 3 and 4 of the resolution of 5 December 1993 are in my view ultra vires they constitute powerful evidence of acceptance by the trustees that the plaintiff’s status extends to decisions concerning property. I accept the plaintiff’s evidence to that effect.
[108] The plaintiff’s argument is that his role as duly appointed spiritual director has constituted the status quo since the death of the 16th Karmapa.
The trustees’ contention as to status quo
[109] The trustees advanced a powerful argument for a different status quo. They emphasise the plaintiff’s change of allegiance from Urgyen Trinley Dorje to Thaye Dorje; that he having encouraged the trust and the community to follow Urgyen Trinley Dorje the trustees were entitled to continue on that basis rather than the plaintiff. In his careful submissions Mr Fenton contended that the status quo was that Karma Choeling Buddhist Monastery deferred to the IKHQ set up by the 16th Karmapa and the subject of his address at the opening of its headquarters on 27 February 1981 under the guidance of Dhamchoe Yongdu, the General Secretary of Rumtek, as managing director.
[110] The 16th Karmapa had recorded that in his absence or in the absence of the Karmapa one of the four Eminences would act as Managing Director. The General Secretary of the new international office was Mr Tenzing Namgyal. The convention is that the Karmapa Charitable Trust established by the 16th Karmapa on 23 August 1961 had not been established as a vehicle for administration of Karma Kagyü and its use by the Shamarpa for that purpose is outside the mainstream administered by IKHQ.
[111] A newsletter from the New Zealand Karma Kagyü Trust dated August 1992 records the finding of the 17th Karmapa in the form of Urgyen Trinley. His enthronement at Tsurphu Monastery, Tibet, is recorded in the edition of February 1993. A printed letter from the plaintiff records that
On July 3 1995, at the beginning of my trip, I visited His Holiness 17th Gyalwa Karmapa and we had a short period of time together and just before returning to Nepal I was able to visit Tsurphu Monastery once more and give His Holiness some instruction in grammar, calligraphy and drawing… previously I spent many wonderful years with His Holiness 16th Gyalwa Karmapa. My time with His Holiness 17th Karmapa last year evoked all those glorious golden years.
[112] A policy document prepared by Mr Jeltsen for New Zealand Karma Kagyü Trust defines an official centre of NZKKT
…as a place where a group of Karma Kagyü students meet regularly acting as a satellite of the NKKKT under the authority of His Holiness 17th Gyalwa Karmapa, Urgyen Trinley Dorje.
[113]It records the purpose of the centre as
…to encourage and facilitate the study and practice of dharma as transmitted in the Karma Kagyü Lineage of Tibetan Buddhism under the auspices of His Holiness Gyalwa Karmapa Urgyen Trinley Dorje…
[114]A brochure prepared by the New Zealand Karma Kagyü Trust records
His Holiness XVII Gyalwa Karmapa Urgyen Drodul Trinley Dorje is the current head of the Karma Kagyü Lineage and this monastery.
[115] Newsletters recorded a blessing of HE Tai Situ Rinpoche’s return from Taiwan to India and a special celebration described as
Long Life Ceremony for His Holiness 17th Gyalwa Karmapa Urgyen Drodul Trinley Dorje Saturday 5 October 1997 at the request of His Eminence Tai Situ Rinpoche.
[116] But on 8 April 2001 Mr Jeltsen, the former director of NZKKT, Ms Wood and Mr Simmons, former trustees and managers of Karma Choeling, wrote to the plaintiff drawing to his attention
…some anomalies associated with the legal structure of this trust which could potentially affect Your Eminence’s status as its Spiritual Director.
[117] The first was that the 1993 amendment to the trust deed had not been filed with the Registrar of Charitable Trusts and Incorporated Societies. The second was that
In recent years, it appears there has been a change of focus by the resident Lamas in regards to the Spiritual Leadership and authority in matters relating to the New Zealand Karma Kagyü Trust. The last few years have seen the resident Lamas defer decisions and consultation to His Eminence Tai Situ Rinpoche. Our understanding is that this would be the role of the Spiritual Director. During our involvement with the New Zealand Karma Kagyü Trust in the last few years, it has not been evident that you have been consulted in matters regarding the development of the New Zealand Karma Kagyü Trust and the monastery. There have been unsuccessful attempts to raise this concern with the resident lamas… We leave these matters in Your Eminence’s capable hands and await any instructions you may have for further action on our part. We stand ready to assist Your Eminence in any way you require.
[118] On 27 September 2003 the plaintiff despatched from Auckland an email message stating
Previously I have remained quiet but now the teaching of a precious Buddha Dharma is in jeopardy I must speak up.
My wish is for harmony in the Karma Kagyü lineage for the long term future. I have no wish to be involved in any politics and I have no knowledge of any politics. I respect both 17th Karmapas and their Regents and I respect all Karma Kagyü Rinpoches.
[119] On 7 December 2003 he emailed from Auckland the followers of the Karma Kagyü tradition around the world referring to a prophecy by the 5th Karmapa that there would be an obstacle within the Karma Kagyü lineage. He said that a month before the death of Jamgon Kongtrul Rinpoche the Rinpoche told him that there would be conflict between two of the great high lineage holders. He said that
he would not be able to resolve the situation but that the plaintiff would be the mediator between the two Rinpoches. The plaintiff recorded
I do have great respect and faith in HH Urgyen Trinley as the Karmapa and I believe he is also the Karmapa because HE Situ Rinpoche recognises him and HH the Dalai Lama also recognises and supports him. I have great faith in HE Situ Rinpoche for he has the pure wish to benefit the Karma Kagyü doctrine and all sentient beings.
As for HH the Dalai Lama’s involvement, he has been told by HE Situ Rinpoche and Gyaltsab Rinpoche that all the Karma Kagyü lamas, both high and low, will accept this incarnation…
At that time HH the Dalai Lama thought that all our great Kagyü Lineage holders were of one mind. He was not aware that there was already a problem and disharmony between the Regents. If he had known, he may not have issued the support letter or at least, he would have delayed his decision in issuing the support letter.
[120] He referred to an event in June 1992 when the plaintiff was due to meet the Dalai Lama and to inform him about the Karma Kagyü conflict which had started in Rumtek. In discussion of the Rumtek problems the Dalai Lama told him that Situ Rinpoche and Gyaltsab Rinpoche had visited him being followed by Shamarpa Rinpoche the following day. He invited them to come together so he could offer him advice but instead they went to see him separately. The plaintiff expressed the opinion that it is possible there can be two Karmapas in order to benefit sentient beings because the Karmapa can be manifest in many different forms. He describes as stubborn the type of mentality that since previously there has never been two Karmapas therefore in the future there cannot be two Karmapas. He went on to say that in the history of the Kagyü lineage Kunzig Shamarpa Rinpoche was the holder of the “red hat”. The reason why Kunzig Shamarpa Rinpoche himself can recognise the Karmapa is because he has this ability to do so.
For that reason I highly respect Shamarpa Rinpoche and HH Karmapa Thaye Dorje as the true Karmapa.
He then referred to his having
…a feeling of certainty that Thaye Dorje is the Karmapa.
[121] He recorded that in 1996 the Shamarpa said that Thaye Dorje would be coming to Bodhgaya for his hair cutting ceremony and asked that it be performed at
the plaintiff’s monastery. The plaintiff agreed that should occur. He said that subsequently those associated with Tai Situ Rinpoche have been estranged from him. He expressed the view that the two Rinpoches are like his left and right eye and he sees no difference between them.
[122] In summary, the trustees assert that recognition of Urgyen Trinley as 17th Karmapa is so deep seated as to constitute a status quo that ought not to have been changed by the plaintiff’s intervention and should now be restored by the Court. The plaintiff says that the status quo is represented by his appointment and continuing role as spiritual director which he has duly exercised by dismissal of the trustees.
The language of the deed
[123] The decision of a New Zealand court must be controlled by the language of the trust deed. Clause XII was reproduced at para [4]. Clause II provides
II. Constitution of the Board
(a)The Board shall consist of a maximum of five members and a minimum of three members.
(b)The original Board members shall be the Trustees named in the Deed of Trust of which this Appendix “B” is an annexure.
(c)Vacancies in membership of the Board shall be filled as follows:-
(i)A meeting of the Board shall be called in the manner prescribed in Part IV hereof.
(ii)In addition to Notice to Members of the Board Notice in writing of a meeting to be held for the purpose of or for purposes including the filling of a vacancy or vacancies on the Board shall be sent to all centres established by the Board pursuant to the objects of such notice shall be posted by the Secretary to the said centres at least 21 days prior to the date fixed for the holding of the meeting.
(iii)All such centres shall have the right in accordance with their own administrative and procedural rules as approved by the Board to appoint a representative to attend the meeting.
(iv)At any meeting held for the purpose of or for purposes including the filling of a vacancy or vacancies on the Board all representatives appointed pursuant to paragraph (iii)
hereof together with the existing Board members present at the meeting shall be entitled to nominate, second, and vote for persons to fill any vacancy or vacancies on the Board.
(v)All vacancies in membership of the Board shall be filled by a unanimous vote of the Board members and representatives present at meetings held for or including the purpose of filling such vacancies.
(vi)No representatives present at a meeting as aforesaid shall be entitled to vote on any matter other than the filling of a vacancy or vacancies on the Board.
(vii)The names of persons voted into Membership of the Board and such other of their personal details deemed appropriate by the Board shall be forwarded to His Holiness Gyalwa Karmapa or his future incarnations or temporary successors or to such other person or persons appointed by His Holiness or his future incarnations or temporary successors to supervise and assist the Board in its activities.
(d)The office of Board Member shall become vacant if:-
(i)he or she shall resign office by giving one months notice of his or her intention so to do to each of the other Board Members; or
(ii)he or she shall become lunatic or of unsound mind;
(iii)he or she be absent from New Zealand for a period of twelve months without obtaining leave of absence from the other Board Members; or
(iv)he or she shall die; or
(v)he or she fails to attend six (6) consecutive board meetings without first obtaining leave from his Board Members to be absent from such meetings;
(vi)by a majority vote of the Board he or she is deemed to have failed to fulfil the duties of Board Membership; or
(vii)the Board is advised by His Holiness Gyalwa Karmapa or his future incarnations or temporary successors or by such other person or persons holding authority to do so from His Holiness or his future incarnation or temporary successors that a Board member is not or is no longer suitable to continue as a Board member and is no longer to be a Board member.
[124] The plaintiff’s argument is that as a person appointed by the 16th Karmapa under clause XII(a) “to supervise and assist the Board in carrying out the objects of the [trust]” the spiritual authority of the Karmapa is
…as conveyed to the Board… by [the plaintiff] being a person… appointed by His Holiness… to supervise and assist the Board in carrying out the objects of the [Trust].
[125] It is he to whom under clause XII(c)(vii) “the names of persons voted into membership of a board… shall be forwarded”; the language of that sub-clause is essentially identical to that of clause XII(a). The plaintiff further argues that while the language of clause II(d)(vii) is expressed slightly differently it is to be construed as referable to the plaintiff.
[126] The trustees first argument, that the plaintiff’s authority was limited to spiritual matters, proves too much. Clause XII makes plain that the temporal authority of carrying out the objects of the trust including the establishment of centres or schools is not a discrete responsibility entrusted to the trustees to be carried on free of the control which spiritual matters which the deed confers upon the 16th Karmapa, his temporary successors and future incarnations and such other person or persons appointed by them to supervise and assist the board in carrying out the objects of the trust.
[127] The trustees further argue that the role under clause XII(a) “to supervise and assist the Board” and under clause II(c)(vii) again “to supervise and assist the Board” is referable to powers that do not constitute “authority to [render the office of a board member vacant] under clause II(d)(vii)”. They cite Dal Pont and Chalmers Equity and Trusts in Australia and New Zealand (2nd ed) 2000 p 608
Trustees may be removed under an express power contained in the trust instrument which will be strictly construed.
The statement is supported by the authorities cited but the question remains as to what is the strict construction. That depends on the scope of the authority given under clause XII(a) “to supervise and assist the Board in carrying out the objects…”.
[128] Mr Fenton submits that “supervise and assist” does not embrace ultimate control and applies a degree of stewardship rather than plenipotentiary power.
[129] Certainly “supervise”, like any word, may carry different senses in different contexts. Here however the authority in question is that of the Karmapa himself as
well as of the other persons referred to. The hierarchical nature of Karma Kagyü gives ultimate authority to the Karmapa. There is no contextual reason to limit that authority. The Oxford definition of “supervise” – “to oversee, have the oversight of, superintend the execution or performance of [a thing], the movements or work of [a person]” – must include the power to direct the Board to a different course of action. It is logical to treat that authority as the reason for clause II(c)(vii) as echoing the power of the Karmapa and others “to supervise” as well as to “assist the Board in its activities”: the names are given to the Karmapa (and his delegates) so he can if necessary take action in respect of them. Such action must include the power under clause II(d)(vii) effectively to dismiss. The power of supervision by the Karmapa being plenary, so too is that of the plaintiff. While sub-clause (d)(vii) does not itself stipulate who holds relevant authority, its reference to “…such… person… holding authority to [render] the office of board member… vacant” is apt to refer to those with the authority possessed by the plaintiff. He may therefore elect to dismiss trustees.
[130] The trustees argue that the plaintiff’s function has been superseded by the establishment of the Council of Regents which have become “temporary successors”. I do not doubt that had the four Eminences acting jointly purported to dismiss the plaintiff their decision would have been effective. But that did not occur. In the alternative it is asserted that either the IKHQ or the Karmapa Charitable Trust is the Karmapa’s “temporary successors” and given that there is now a dispute as to which is the temporary successor again the plaintiff’s authority may be said to be in abeyance. But the argument begs the essential question: it would only be if the IKHQ were held to be the “temporary successor” that its purported dismissal of the plaintiff would be effective. But that is a question which is not justiciable.
[131] A further argument is that clause II(d)(vii) carries with it objective criteria and there must be reason or cause for removal and basis for an opinion that a trustee “is not or is no longer suitable to continue as a board member”. They argue that there is at the very least strong evidence that the central stream of the Karma Kagyü lineage recognises Urgyen Trinley Dorje as the 17th Karmapa as recognised by HH the Dalai Lama. But again to entertain that argument would take this Court into the forbidden zone.
Decision
[132] I am satisfied that there has been no material change in the relative positions of the plaintiff and the trustees since 1993 which must be decisive unless one were to enter the impermissible area of attempting to determine the identity of the 17th Karmapa. I have rejected the trustees’ argument that there is analogy with the position in English law of the monarchy and concluded that the functions of a mere agent whose authority is removed with the death of the principal are not comparable to the role and status of a high official. There is no support in the evidence for a result that I have described as chaotic: that upon the death of a Karmapa the appointment of every office holder terminated so that none had authority to administer the affairs of Karma Kagyü until identification of the reincarnate Karmapa.
[133] This Court cannot, unlike the House of Lords in Overtoun, make a judgment on how the position of the plaintiff conforms with Karma Kagyü doctrine. By clause XII(a) the spiritual authority is “as conveyed to the Board… by such… person… appointed by His Holiness… to supervise and assist the Board…”. Such person has at all material times been the plaintiff.
[134] The division of opinion of the House of Lords in Overtoun following a second argument and the subsequent legislation illustrate the practical difficulties that are likely to arise from a decision either way in this case. It is no longer to be viewed in the pragmatic perspective to which recourse is had in determining applications for interim relief. At that stage regard may be had to the personal and financial consequences of a decision in favour of the plaintiff which would affect the income stream which sustains the Kaukapakapa monastery, and the fact that a predominant number of its present members and all current trustees resist the plaintiff’s claim. But as the result in Overtoun demonstrates, if a principled decision on the parties’ substantive legal rights requires a judgment with difficult consequences that is not a matter that the Court may allow to dissuade it from such conclusion, even though it requires the Court to look hard to see whether that result is in truth correct.
[135] Disregarding the non-justiciable question of the identity of the 17th Karmapa, there is no basis to refute the plaintiff’s contention that he has at all material times possessed the authority to supervise the board in carrying out the objects of the trust. No justiciable argument has been advanced to alter his status.
[136] Here the trustees have elected, honestly and in good conscience, to accept a direction incompatible with that of the plaintiff whose own authority cannot be shown to have been superseded. Ordinarily that would lead to a declaration that his dismissal of the trustees was lawful and effective in point of New Zealand law. An argument of inadequate notice to them was not pursued; given the deep-seated rift further time could have made no difference.
[137] It is however the case that the trustees have had no opportunity to consider their position in the light of the judgment of this Court. Further, I have in the course of these proceedings had the privilege to learn a little of the principles that underlie Karma Kagyü.
[138] I have therefore decided to give the parties opportunity to consider and possibly discuss my findings to see whether recourse to the Court is in fact the best option and, if so, what orders should be made.
[139] This will therefore be an interim judgment. I will receive written submissions from the plaintiff within 14 working days and the defendants within a similar period as to what course should now be followed.
W D Baragwanath J
Appendix A
RESOLUTION OF NEW ZEALAND KARMA KAGYÜ TRUST MADE 5TH DECEMBER 1993
Referring to Rule XII of the Trust’s Rules as an Incorporated Trust Board The New Zealand Karma Kagyü Trust resolves as follows:
1. The Trust recognises His Eminence Beru Khyentse Rinpoche as its Spiritual Director.
2. The Trust acknowledges that the position of Spiritual Director was assigned to Beru Khyentse Rinpoche (“His Eminence”) by His Holiness the XVIth Karmapa.
3. The Trust acknowledges that appointment of its members, any changes to its rules or objects as an incorporated Trust Board, and any acquisition or disposition of property is subject to the prior approval of His Eminence or such other agent appointed by His Eminence for the purpose of providing such approval.
4. Accordingly Rule XII is hereby amended by the addition of the following sub-paragraph:
“(e) No appointment of Trustees, no changes to these Rules or the Objects of this Trust as an incorporated Trust Board, and no acquisitions of land and buildings are to be made without the prior approval of His Eminence Beru Khyentse Rinpoche (the acknowledged Spiritual Director of the Trust’s activities appointed by His Holiness the XVIth Karmapa in terms of paragraph (a) hereof) or his successors or assigns, or his agent duly appointed for the purpose of providing such approval;
AND no disposition of land and buildings or chattels of ritual or other religious significance may be undertaken without the prior approval in writing by His Eminence or his successors or assigns.”
Resolved in accordance with Rule X of the Trust’s Rules this 5th day of December 1993 at a meeting of duly appointed Trustees:
[signed] (Kate Adams)
[signed] (Paul Joseph)
[signed] (Patricia Ranchhof)
[signed] (William Hursthouse) [signed] (Christopher Frank Simm)
[signed] (Geoffrey William Wells)
TRADITIONAL ADMINISTRATION – TO 1985
Religious
Lay
Dorje Loppon
(Nedo Rinpoche since 1981)
Monks
General Secretary or Shanak Dzopa
- Dhamchoe Yongdu to 1982
- Topga Yulgal to 1997
Khenpo (Chodrak Thenphel since
1991)
Teachers and students
Overseas Centres International Kagyu HQ established 1981
Teaching
Administration
From 1985 – all administrative functions and supervision of overseas centres was assumed by
Kamarpa Charitable Trust established by deed dated 23 August 1961
Note:1. The Karmapa’s principal monastery until 1959 was at Tsurphu, Tibet
2. From 1959 to 8/1993 the principal monastery was at Rumtek, Sikkim. (Old monastery to 1967. New monastery since 1967)
3. Following the seizure of Rumtek the Karmapa’s administration has been based at the temple of Shamar Rinpoche at Gangtok
Karmapa
Appendix B
Appendix C
His Holiness Karmapa
Four Eminences
H.E. Goshir Gyaltsab Rinpoche,
H.E. Jamgon Kongtrul Rinpoche,
H.E. Sharmapa Rinpoche,
H.E. Tai Situ Rinpoche
General Secretary (Tenzin Namgyal)
Administration of Labrang
International Kagyu Headquarters Headed by General Secretary Tenzin Namgyal
Monk community
Lay community
Three year retreat
Shedra
Monasteries overseas
Centres around the world
0
5
0