"Exclusive Authority": Investigating the Interpretive Mandate of the Waitangi Tribunal and the Constitutional Effects of Entrenching It

Abstract

This article contemplates a possible role for the Waitangi Tribunal in movement towards constitutional transformation. To arrive at that destination, this article first analyses the Tribunal's interpretive authority according to the Treaty of Waitangi Act 1975 and looks to the Tribunal's constitutional status. The meaning and effect of its interpretive mandate in s 5(2) is suggested to be confined within its recommendatory and investigative operations. As a key function, this indicates—alongside case law and commentary—that the Tribunal sits in its own, distinct constitutional position between and around the judiciary, executive and legislature.
Building on the present position, this article makes a case to entrench the Tribunal's interpretive authority, thereby giving more formality and legitimacy to its unique constitutional status. In examining what that protected status looks like, this article imagines the Tribunal in a preliminary role as a body of the "relational sphere" suggested by the Matike Mai report. Using Māori scholarship, this suggestion is critically analysed.