There is a widespread misunderstanding about the nature of a treaty.
The Treaty of Waitangi is often described as the founding document of New Zealand. It is treated, and honoured, as the source of the rights and obligations that define our country.
It is also represented as being the source of substantial rights for Maori 183 years after it was signed, those rights being based on preferential treatment based on race and heritage overriding the concept of equality of all peoples as mandated by New Zealand law and United Nation conventions and declarations.
Somewhat surprisingly the demand for superior rights for Maori pursuant to the Treaty appears to be in direct breach of article 3 of the Treaty which guarantees equal rights for all New Zealanders.
Wikipedia
A treaty is a formal, legally binding written agreement between actors in international law.
Treaties are roughly analogous to contracts in that they establish the rights and binding obligations of the parties.
A treaty is an official, express written agreement that states use to legally bind themselves.
Britannica
A binding formal agreement, contract, or other written instrument that establishes obligations between two or more subjects of international law.
In essence, then, a treaty is an agreement or contract, normally between states, whereby obligations are agreed upon for future arrangements between the two parties.
A transitional document
A treaty is an agreement whereby two or more parties agree to the transfer of power of some sort, and give undertakings as to the transitional arrangements.
An example of the latter is an undertaking by the party assuming power that the existing rights of the citizens of the party yielding power will be protected, and an agreement in respect of the rights of citizenship in the new state entity.
A treaty speaks from the situation as at the time that it is signed. Thus property rights that are protected are those that exist at the date of the treaty.
A treaty is not binding in domestic law
Surprisingly, even though the Treaty of Waitangi was signed in 1840, and even though it is seen as creating fundamental rights, the reality is that the rights and obligations in the articles of the Treaty have never been incorporated into New Zealand legislation. Therefore they are not enforceable in New Zealand courts.
Under the constitution of New Zealand only Parliament can create legally binding rights though legislation.
A treaty must be implemented
The agreements in a treaty must therefore be implemented or executed to make them binding in law.
Any claim for such a right must be based on the legislation and not on the treaty. Quite simply: no legislation, no right.
This is a fundamental point of law that is not understood by those who claim rights under the Treaty. As we will see in the next post, article 1 was implemented with the Crown acquiring sovereignty in 1840, and article 3 was implemented through the colonial constitution and the laws of the new colony of New Zealand.
Principles of the Treaty
No doubt many readers will object to this simple explanation of the law and cry "What about the principles of the Treaty?"
The response is that in law the principles of the Treaty have nothing to do with the obligations and rights in the Treaty itself. It is an unfortunate concept that is generally limited to the resolution of claims outside the law by the Waitangi Tribunal. It has a very limited application in law, but it has been endowed with a much greater and undeserved authority by Treaty activists and by successive governments.
These issue are considered in more detail when discussing the Treaty of Waitangi in Part 7.
https://thetreatyfacts.blogspot.com/p/7-principles-of-treaty-and-waitangi.html
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Next: 3. The meaning of the Treaty
https://thetreatyfacts.blogspot.com/p/the-meaning-of-treaty.html
