Old Wine in New Bottles? Instrumental Policy Learning and the Evolution of the Certainty Provision in Comprehensive Land Claims Agreements

Comprehensive land claims agreements are important tools for empowering Aboriginal peoples. A crucial part of these treaties is the certainty provision, which deals with the nature of Aboriginal rights and title once a treaty is signed. Up until 1986, the Crown insisted on one certainty formula for all treaties. After 1986, however, Aboriginal groups were able to negotiate alternatives to the original certainty provision. This paper seeks to explain why alternatives to the original certainty provision emerged after 1986. It suggests that government perceptions of policy failure, generated by Aboriginal opposition to the extinguishment clause, resulted in the Crown engaging in instrumental learning.