Appellants factum - Woodward & Company

26declaration of title in accordance with the findings of fact set out in the reasonsfor judgment. 185PART 2 – ERRORS IN JUDGMENTError #1 – Declaration of Aboriginal Title in the Proven Title Area93. The Trial Judge erred by denying the Tsilhqot’in Nation a declaration ofAboriginal title to the Proven Title Area within the Claim Area. In particular:a. the Trial Judge mischaracterized the Plaintiff’s action as an “all or nothing”claim when the Plaintiff’s action clearly centred on the existence and extent ofAboriginal title throughout the Claim Area; and,b. in the alternative, the Trial Judge erred by failing to grant declarations ofAboriginal title to lesser, included portions of the Claim Area.Error #2 – Exclusive Physical Control of the Claim Area94. On the facts as found by the Trial Judge, he erred in law by not finding Aboriginaltitle to the entire Claim Area. The learned Trial Judge found a high degree of exclusivephysical control by the Tsilhqot’in people over the Claim Area at sovereignty. Thatfinding of fact, coupled with his finding that the Tsilhqot’in people used and occupied theentire Claim Area at sovereignty, should have led the Trial Judge to the conclusion thatthe Tsilhqot’in people hold Aboriginal title to the entire Claim Area.PART 3 – ARGUMENTError #1 – Declaration of Aboriginal Title in the Proven Title AreaA. Trial Judge’s Reasons on the Preliminary Issue95. As described above, after 339 days of trial, the Trial Judge found that theevidence before him established Aboriginal title to defined portions of the Claim Area.185 Tsilhqot'in Nation v. British Columbia, 2008 BCSC 600, [2008] B.C.J. No. 871, para. 13.