Appellants factum - Woodward & Company

28would have cross-examined witnesses differently on the boundaries of thesesmaller tracts 193 and taken a different approach to the evidence. 19497. With respect, the Trial Judge’s reasoning, above, rests on a mischaracterizationof the Plaintiff’s claim and serious errors of law and principle.98. First, the Trial Judge erred by characterizing the Plaintiff’s claim as “all ornothing”. Second, and in any event, the Trial Judge was wrong to require the Plaintiff toplead, from the outset of litigation, the precise smaller portions of the Claim Area towhich the Trial Judge would find Aboriginal title at the conclusion of trial. This wouldeffectively require Aboriginal claimants to correctly predict the outcome of the litigationfrom its start or forfeit their right to declaratory relief. As described below, this imposesan impossible burden and is a clear misapprehension of the law of declaratory relief.B. The Plaintiff’s claim included Aboriginal title to portions of the Claim Area99. The Plaintiff did not advance an “all or nothing” claim. The central issue at trialwas “the existence and extent” 195 of Tsilhqot’in Aboriginal title in the Claim Area. Thisissue was rigorously contested by the parties for over 300 trial days. The Plaintiffsought to establish Aboriginal title to the whole of Tachelach’ed and the TraplineTerritory, but also sought Aboriginal title to such portions of the Claim Area as theevidence supported at the conclusion of trial.100. It is worth recalling that the Plaintiff’s action was “provoked by proposed forestryactivities” 196 in the Trapline Territory and Tachelach’ed and that the boundaries of thelitigation, while necessarily artificial, 197 were shaped by those immediate exigencies.101. It is simply not plausible that the Plaintiff, or any litigant in the circumstances,would take the “all or nothing” position described by the Trial Judge. This proceeding is193 Trial Decision, para. 111.194 Trial Decision, para. 122.195 William v. British Columbia, 2002 BCSC 1904, [2002] B.C.J. No. 3366, para. 30 [underscore added].196 Trial Decision, Executive Summary.197 Trial Decision, paras. 641, 645.