Appellants factum - Woodward & Company

27He described and delineated these areas of proven Aboriginal title. He supported hisconclusion with abundant findings of fact and legal analysis.96. Nonetheless, he determined, as a preliminary issue, that he could not grantdeclarations in support of these findings. He offered the following rationale:a. On a “plain reading” of the Plaintiff’s pleadings, the Plaintiff had brought an“all or nothing” claim. In his pleadings, the Plaintiff sought declarations ofAboriginal title to the Brittany (Tachelach’ed) and the Trapline Territory, butdid not “explicitly” claim Aboriginal title to “any portions thereof”. 186b. Relying on the judgment of the English Court of Appeal in Biss v.Smallburgh Rural District Council, 187 the Trial Judge stated that “theplaintiff must make up his mind and set out in his pleadings exactly whatdeclaration he seeks”. 188 If the Plaintiff sought Aboriginal title to smaller tractswithin the Claim Area, “notice of such tracts should have been set out in thepleadings”. 189c. The Trial Judge considered himself bound by Delgamuukw v. BritishColumbia, 190 in which the Plaintiffs were barred from “re-framing” their claimon appeal to the prejudice of the Defendants. 191d. In his view, prejudice to the Defendants arose from the Plaintiff’s failure todefine smaller tracts of land within the Claim Area to which Aboriginal titlewas sought explicitly in the pleadings. 192 He relied on the Defendants’assertion that if the Plaintiff had identified smaller tracts in the pleadings, they186 Trial Decision, para. 120 [italics in original].187 Biss v. Smallburgh Rural District Council, [1964] 2 All E.R. 543 (C.A.).188 Trial Decision, paras. 124-28.189 Trial Decision, para. 111.190 Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010.191 Trial Decision, para. 129.192 Trial Decision, paras. 111, 122.