Reviews of "Taonga and Contra Proferentem"

Mike Butler: Tribunal’s wobbly house of cards

breakingviewsnz.blogspot.com/2024/03/mike-butler-tribunals-wobbly-house-of.html

Forty years of Waitangi Tribunal decisions have been built on a “very wobbly” house of cards, according to Piers Seed in his new book Taonga and Contra Proferentem – thoughts on the Waitangi Tribunal Process.

With a Bachelor of Engineering in electronics, this is the second book in which Seed applies the disciplines of the hard sciences to what passes as history in New Zealand. Two years ago, he used such analysis to debunk myths around the clash between government troops and insurgents at Rangiaowhia on February 21, 1864, in Hoani’s Last Stand. Seed’s new book shows that the Waitangi Tribunal has built its empire on a word and a concept to create its wobbly house of cards.

The word is “taonga”, which originally meant “property procured by the spear”.

The concept is an old legal doctrine called “contra proferentem” used by the tribunal to claim that the Maori language “Te Tiriti” has precedence over the English “treaty” text. This effectively denies the Crown any say in its interpretation which is “surely a very strange thing in an agreement between two parties”, Seed wrote.

The word “taonga” was used 6182 times in newspapers from 1842 to 1989, Seed found by searching digitised records “with a few keystrokes”. “Property procured by the spear”, the first documented English definition of “taonga”, was recorded by New Zealand missionary, recorder of the Maori language, schoolmaster, arms dealer, and Pakeha-Maori Thomas Kendall in 1820.

Kendall’s definition was limited to physical objects that were valuable and referred to the concept of property and not any particular property. Seed traced the evolution of “taonga” through 27 key dictionaries from Kendall’s in 1820 to the Ngata Dictionary in 2021, as well as the 1831 petition by chiefs to King William and the Treaty of Waitangi and showed that “taonga” referred to a physical object until the Motunui Report in 1982, when it began to mean anything in the universe. The Waitangi Tribunal has used the word “taonga“ to include water, fishing rights, environmental management, forestry, geothermal resources, Maori language, radio frequencies, data related to the Maori world, flora, fauna, intellectual property, mountains, minerals, the right to vote, Maori seats, Maori children, and so on.

Seed shone a light on the musings of eminent linguist and Maori studies expert Bruce Biggs in his 1989 article titled Humpty Dumpty and the Treaty of Waitangi in which Biggs linked “taonga” with what he asserted was the “metaphorical nature of the Maori language”. The idea that this “metaphorical argument” could in any way prove anything about “taonga” is illogical, Seed wrote. “Are Biggs, and the tribunal, suggesting that “the Maori language is so obtuse and chameleon like that not only “taonga” but by extension any Maori word can mean anything, everything, and therefore nothing”, Seed wrote.

The “contra proferentem” doctrine was designed as a penalty for someone who drafted an ambiguous contract aimed to get results that benefited the drafter. The earliest tribunal reference to contra proferentem was in WAI 9 in 1987. Seed notes that the tribunal’s use of contra proferentem is self-contradictory, done without justification, and misapplied to a treaty in two languages when it has only ever been used on contracts or treaties in one language.

His 45-page discussion about treaties with North American Indians, Seed shows how entirely different they are from the Treaty of Waitangi. They concern blocks of land, disputes are settled in a law court, the goal of settlement is justice, remedies are reasonable and practical, issues are contemporary, and those treaties are in English only.

On the other hand, the Treaty of Waitangi concerns sovereignty, the tribunal is a mock court with no defence counsel or testing of evidence, the goal is settling grudges, remedies run into the billions, issues go back eight generations, and the texts are in two languages with a set or arbitrary principles.

Seed challenges the tribunal’s “deliberate ambiguity” assertion by drawing attention to the extent to which Governor William Hobson bent over backwards to ensure that chiefs understood the contents of the treaty. Hobson even had it translated into the chiefs’ language in words often of one syllable, which is the precise opposite of a drafter deliberately misleading through ambiguity.

Seed’s research into “taonga” and “contra proferentem” cuts through the Waitangi Tribunal’s 178 reports totalling 41,734 pages which would create a pile 4.2-metres high. His concise analysis would is a helpful handbook for any Minister who may dare to challenge the treaty industry.

Rigorously analysed, exhaustively explained, and replete with colourful insights and observations, Taonga and Contra Proferentem – thoughts on the Waitangi Tribunal Process by Piers Seed is a must-read for anyone who wants to understand how we got to where we are in New Zealand today.



Roger Childs: A Law unto itself - the Waitangi Tribunal

https://waikanaewatch.org/2024/03/31/a-law-unto-itself-the-waitangi-tribunal/

In his second history book, Christchurch writer Piers Seed provides a fascinating and highly perceptive analysis of what’s wrong with the Waitangi Tribunal process.

Entitled Taonga and Contra Proferentem, the author examines how the crucial Maori word taonga has evolved from meaning “property” and all that entails, in the early 19th century. Today in making judgements on claimants’ cases, the Tribunal allows taonga to mean “anything you care to name” in the guise of the wonderfully vague word “treasure”.

Piers Seed looks at whether taonga and contra preferentem (a legal term that can mean in ambiguous contract or treaty situations, decisions should favour the party which is on the receiving end) have been used correctly and ethically. He outlines a strong case to support the proposition that many “important Tribunal decisions (have) been based on a very wobbly house of cards.”

A different kettle of fish

In his first book Seed tackled the controversial claims that women, children and older men of the south Waikato town of Rangiaowhia were slaughtered in February 1864. Using all the known eye-witness accounts, both Maori and non-Maori, he emphatically dispels the myth of atrocities being committed by General Cameron’s forces.

The book clearly demonstrated his skills in analysis and using a comprehensive range of evidence, however in Taonga and Contra Proferentem his focus is not on specific historical events, but on the process by which the Waitangi Tribunal has been making decisions resulting in hundreds of millions of tax-payers dollars being paid out to Maori groups.

By redefining the word taonga to mean “treasure” the Tribunal opened the flood gates to allow claimants to apply the word to “mauri (life force), intellectual property, navigational aids, radio spectrums, languages, ideas, thoughts, rivers or mountains, or indeed anything abstract or spiritual.”

By favouring the Maori Treaty (Te Tiriti o Waitangi) over the English language version under the legal principle of contra proferentem, the Tribunal effectively denies the Crown the right to challenge its decisions. It may not be a court of law, but often acts like one.

Taonga – a word with many meanings

The author looks in considerable detail at how the word has been translated and interpreted from 1820 to the present day. In a chapter entitled “A chronological history of taonga” Seed starts with Thomas Kendall’s Grammar and vocabulary of the language of New Zealand and examines various dictionaries and collections of Te Reo words through to the online Ngata Dictionary of 2021.

He does point out that in various publications, notably the Maori version of The Bible, “treasure” is mentioned as a meaning for taonga, but nothing like the “anything highly prized” definition the Waitangi Tribunal has applied. In looking at New Zealand’s historical records he has this to say “ … trawling through this vast documentation we find no records of taonga, as envisaged by the Tribunal, from the time of Captain Cook to the 1980s.”

He does not examine the Articles of the two Treaties, but does observe that overall the English-language version is a short and “exceptionally clear document pitched at the best possible sweet spot for that place, that time and to that audience”.

However, the purpose of his book is to show how taonga has become “an underpinning concept of the Maori world” and how the Tribunal has favoured Te Tiriti over the English version in its judgements, according to the principle of contra proferentem.

In opening Pandora’s Box on meanings of taonga anything is possible, and Seed observes that consequently many Tribunal decisions “are … based on fantasy”.

Seed emphasizes that the Tribunal is not a Court of Law but in fact is akin to a Royal Commission. This compares with the United States and Canada where issues related to treaties with indigenous people are decided in the courts and contra preferentum is often applied to ensure that both side are given a fair go.

Highly recommended

The failings of the hugely influential Waitangi Tribunal is a topic mainstream media will not touch with a rowing oar, fearing at the very least of being called “racist”. Seed emphasizes that his approach to this subject, which affects all taxpayers, is not based on rhetoric but is methodically centred on fact and logic.

The book is fluently written, laced with plenty of appropriate analogies and occasional touches of humour, and backed up with supporting footnotes and appendices.

Taonga and Contra Proferentem fills a huge gap in writing on the Treaty decision-making process, and provides comprehensive insights into an organization that the government first needs to rein in and then disband. The Waitangi Tribunal has transmogrified into a self—sustaining monolith and its staff probably feel that they have jobs for life.

(You can purchase Taonga and Contra Proferentem Thoughts on the Waitangi Tribunal Process by emailing info@piersseed.co.nz and is listed on amazon.com.au. The price is $35 plus postage.) Roger Childs is a retired teacher who taught History, Social Studies and Geography for 40 years. 


Review by Allen Heath 

I found this book an easy read, very well researched and clear in its conclusions.

Piers Seed is to be congratulated for bringing such an important topic into view. It covers the evolution of the word ‘taonga’ from just meaning simply property such as a spear or a slave, to everything that the Waitangi Tribunal (and its supplicants) can think of that Maori should now own, including radio frequencies, fishing rights and geothermal resources, among many others; items that the 1840 Maori would have not considered owning at the time of the Treaty’s origin.

Of major concern is that only the Maori language version of the Treaty is given full consideration, despite the fact that it was originally drafted in English. This of course being incontrovertible given that Maori did not have a written language until English missionaries converted it into a written form. They in fact invented terms for things and concepts that were never part of the Maori culture and lexicon, a practice that is continuing to this day.

Of further concern is that where there is any doubt as what was meant or implied in the Maori version of the treaty, then the decision goes against the drafter of the Treaty and is ruled in favour of the applicant or supplicant under the legal term contra proferentem, itself not used in its correct fashion by the Tribunal.

In all, this book shows that the Waitangi Tribunal acts in a very biased fashion, misrepresenting much of the Treaty’s original meaning and, as a consequence should be part of either a judicial review or a commission of enquiry, with a subsequent, well-deserved demolition and disbandment. I recommend this book to every New Zealander who fears that race-based politics and anti-colonialism rhetoric are turning this country into a divided nation.

Allen C.G. Heath, 12 April 2024