The contra proferentem rule in the reports of the Waitangi Tribunal

This paper examines the Waitangi Tribunal’s application of the contra proferentem rule, a rule developed by United States courts for the interpretation of treaties with Native Americans. The Waitangi Tribunal adopted the Unites States courts’ approach in one of its earliest reports when interpreting the Treaty of Waitangi and has held on to it ever since, even though it is less prominent in the later reports. As a survey of Tribunal reports reveals, the Tribunal has used the contra proferentem rule to different effects. A comparison of the circumstances surrounding the treaties with Native Americans in the United States and the signing of the Treaty of Waitangi however reveals crucial differences that make an interpretation of the Treaty contra proferentem inappropriate. Given that the Treaty is essentially the text in the Māori language, this paper argues, it should be interpreted as a Māori document, that is to say in the Māori oral and cultural context of the Treaty signings. This however is something that the Tribunal only very rarely attempts.