The Tribunal is concerned generally with the task of finding facts based on the presentation of evidence, and it decides cases by applying settled rules or principles to facts. It exercises an inquisitorial jurisdiction, and its decisions have wide ranging effects, not confined to deciding questions involving individual rights.

The Waitangi Tribunal Guide to Practice and Procedure sets out the procedure of the Tribunal. In summary, proceedings may be formal or informal (such as kōrero tuku iho hearings, wānanga or tūāpapa hearings). In the majority of proceedings, the “kawa o te marae” is applied and tikanga is followed where appropriate (see also clause 5(8)-(9) of the Second Schedule of the Treaty of Waitangi Act 1975). Proceedings may be held privately or in public as the Tribunal may set its own procedure, but in almost all instances are open to the public.  At Tribunal hearings all claimants and the Crown are heard.  The parties put their case or respond, cross-examine witnesses and make submissions to the Tribunal.  The hearing process by necessity brings into the Tribunal aspects of an adversarial jurisdiction. The Tribunal is careful, however, to manage its procedure to avoid unnecessarily adversarial approaches. Claims may be referred to mediation where that may be an appropriate method to reach resolution of a Treaty issue between claimants and the Crown (see clauses 9A-9D of the Second Schedule of the Treaty of Waitangi Act 1975). After hearing from the parties, the Tribunal writes a report setting out its findings on whether the claims submitted to it are well-founded (ie they have established a breach of the principles of the Treaty by the Crown), and if they are well-founded the Tribunal’s recommendations as to actions the Crown should take to remedy the breach.

On the administrative-judicial spectrum the Tribunal is generally situated closer to the judicial end of the spectrum, even when acting under its standard jurisdiction (section 6 of the Treaty of Waitangi Act 1975).  The unique nature of the Tribunal as standing commission of inquiry has resulted in the Law Commission recommending it be dealt with differently to other commissions of inquiries (See Chapter 15 of the Commission’s A New Inquiries Act (2008)).

In Joseph on Constitutional and Administrative Law, Professor Philip Joseph notes that commissions of inquiry will often investigate matters that would ordinarily fall for adjudication in the courts, and cites the Waitangi Tribunal as an example of a tribunal exercising “judicial (or quasi-judicial) functions” (refer 9.5.2). In this way, the Tribunal is properly understood as a permanent commission of inquiry exercising judicial and quasi-judicial functions.  It also has features of a Tribunal with the Treaty of Waitangi Act 1975, giving the Tribunal the powers of a court in specified circumstances – for example, it is empowered to exercise all powers relating to evidence under the Evidence Act “in the same manner as if the Tribunal were a court within the meaning of that Act” (Schedule 2, Clause 6). It also has an express adjudicative function concerning certain Crown Forest & State-Owned Enterprises lands as outlined in the Treaty of Waitangi Act 1975. The adjudicatory nature of the Tribunal’s powers in this area was confirmed in the Supreme Court’s decision in Haronga v Waitangi Tribunal [2011] NZSC 53.

Tribunal members hold warrants issued by the Governor-General. Under s 4(2A) of the Treaty of Waitangi Act 1975, members of the Waitangi Tribunal are appointed having regard to the partnership between the two parties to the Treaty. In practice this means that Tribunal panels are made up of experts from within both Te Ao Māori and Te Ao Pākehā, including pūkenga, historians, scientists, commercial directors, lawyers, senior public servants, and former members of parliament. Within the scope of this membership, the Tribunal can ensure that all parties are given a full and fair hearing before a panel of experts with knowledge of the issues and areas under inquiry.

Constituting panels is the responsibility of the Chairperson. She may draw from the pool of members and Māori Land Court judges who usually chair inquiry panels. These judges are deemed members of the Tribunal once appointed to a panel. As well as being experienced lawyers, the judges bring with them knowledge of the issues that come before the Tribunal. The criteria for appointment before they become judges requires they have knowledge and experience of te reo Māori, tikanga and the Treaty of Waitangi.  In its report The Role of Public Inquiries (NZLC, Issues Paper 1, 2007), the Law Commission noted that judges tend to be appointed for long-term inquiries and it stated that: “…the tendency to appoint judicial heads reinforces their [the inquiry’s] “apolitical, independent, dignified, authoritative [and] serious nature…” (page 11). 

The jurisdiction of the Waitangi Tribunal is consistent with the principles of the rule of law, that is, that disputes involving rights, including review of government actions, are to be decided by judges and members independent of the executive. All these features help secure the rule of law and the equal application of the law to claimants and the Crown.