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The Treaty of Waitangi is a founding text in New Zealand, which documents a political agreement signed in 1840 between Captain William Hobson as consul for the British Crown, and a number of Māori chiefs. It is common to refer to it as an agreement which is not a legal document, for example:

In Wikipedia:

The treaty document is an agreement, not a treaty as recognised in international law

In The Guardian:

The Treaty of Waitangi / Te Tiriti o Waitangi – considered New Zealand’s founding document – was signed in 1840 by the British Crown and about 540 Māori chiefs to establish a nation state. While not a legal document, some treaty principles have been developed and included in legislation.

In Cox (2002) - The Treaty of Waitangi and the Relationship Between the Crown and Maori in New Zealand

Orthodox theory holds that the Treaty of Waitangi (“Treaty”) has a socio-political, not legal, force, as it was not a treaty recognized under international law[.]

This is unintuitive to say the least. I can understand that maybe the "Treaty" is misnamed, but it is a formal documented agreement between an agent of the British Crown and local authorities. Why is it not a treaty in the same sense of other colonial agreements such as the British Treaty of Amritsar, or the US Treaty with Creek Indians?

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    I suggested the tag "indigenous-rights" but don't have the reputation. "Waitangi" would be appropriate as well.
    – Adam Burke
    Commented Feb 6 at 3:26
  • What is a "legal document"?
    – Greendrake
    Commented Feb 6 at 3:34
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    I think they mean it can't be cited by a judge as something with the force of law, only laws inspired by it can be. But confusion about how precisely it is not a treaty and not a legal document is why I am asking the question.
    – Adam Burke
    Commented Feb 6 at 3:46
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    In 1840, the United Kingdom would normally ratify a treaty in some form. This is probably the main reason why it is not considered treaty as recognised in international law. See: Vienna Convention on the Law of Treaties - Wikipedia (which doe not cover treaties before 1969)
    – Mark Johnson
    Commented Feb 6 at 8:22
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    A new question would be: was Henry Hardinge, 1st Viscount Hardinge - Wikipedia, as Governor-General of India, authorised by parliment, in the Government of India Act 1833, to ratify the Treaty of Amritsar (1846) - Wikipedia?
    – Mark Johnson
    Commented Feb 6 at 8:36

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It just so happens that the Parliament is the body to decide what is law and what is not. Being the top authority within the country, it can create or repeal laws as it pleases, grant or take legal power to/from documents.

The reasons why the Parliament does or does not something is politics.

Even if the Parliament wanted to give the Treaty of Waitangi the power of law, it would be simply impracticable because the English and Maori versions of it are not quite consistent (citing the Wikipedia):

As some words in the English treaty did not translate directly into the written Māori language of the time, the Māori text is not an exact translation of the English text, particularly in relation to the meaning of having and ceding sovereignty

Essentially, each party to the agreement had their own vision of what it was. There was no proper meeting of the minds. As a result, the agreement is now a historic document and a political card to play, but not a legal document to be cited directly.

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  • What about the question of whether it is recognized as a valid treaty under international law?
    – Nate Eldredge
    Commented Feb 6 at 6:02
  • @NateEldredge In international law, treaties are agreements between countries. Not applicable here.
    – Greendrake
    Commented Feb 6 at 6:08
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    The doctrine of Parliamentary supremacy does not stop the United Kingdom signing, and honouring, treaties such as the Treaty of Lisbon or the Treaty of Versailles, so why would it stop the NZ parliament honouring the Treaty of Waitangi? Alternatively, if the NZ parliament specifically used parliamentary supremacy to override some element of Waitangi as a treaty, shouldn't we be able to point to that legislation? In my limited understanding, it seems more like the NZ parliament acted as if there were not a formal treaty in the first place ... which brings me back to the original question.
    – Adam Burke
    Commented Feb 6 at 12:20
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    Treaties are not always between countries, as in the case of the US treaty with Creek Indians or the 1758 Treaty of Easton between British colonials and 13 Native American tribes.
    – Adam Burke
    Commented Feb 6 at 12:21
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    Ignoring a legal commitment predating the parliament requires some legal reasoning, as to why it is newly ignored or why it was never a legal agreement in the first place. New parliaments typically inherit their colonial legal commitments. Queenslanders that owned land before the establishment of the QLD parliament didn't suddenly lose title to their land in 1860.
    – Adam Burke
    Commented Feb 7 at 1:07

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