Appellants factum - Woodward & Company

38declaration should be granted”. 238 For a number of reasons, set out below, it ispractically impossible for the plaintiff to plead “every precise possible variation” 239 on theboundaries of Aboriginal title that might ultimately be proved after several years of trial.129. Yet this was the burden imposed by the Trial Judge in the court below, e.g.:If smaller definite tracts of land are to be considered, notice of such tracts shouldhave been set out in the pleadings. 240…Although British Columbia may have been aware of an alternate claim to portionsof the Claim Area, any mention of this in the statement of defence is not a defacto amendment of the plaintiff’s pleadings. More importantly, such a plea doesnot define the smaller tracts of land said to be contained within the twocomponent parts of the Claim Area”. 241130. With respect, the law cannot be that the Plaintiff is required to anticipate theoutcome of 300+ days of trial and precisely delineate, in his pleadings, the “smallerdefinite tracts of land” to which Aboriginal title will ultimately be proved. Even with thebenefit of a full trial and his own findings of fact, the Trial Judge expressed discomfortdescribing the boundaries of the Proven Title Area notwithstanding these boundarieswere “shaped by the evidence”. 242Requiring the Plaintiff to define tracts of Aboriginaltitle land with the same precision, at the pleadings stage, would impose an impossibleburden as a precondition to declaratory relief.131. This reality is underscored by the Trial Judge’s own remarks about the inherentchallenges, even with the benefit of a full trial, of drawing boundaries in Aboriginal titleclaims:238 Rt. Hon. The Lord Woolf & Jeremy Woolf, Zamir & Woolf, The Declaratory Judgment, 3 rd ed. (London: Sweet &Maxwell, 2002), p. 284.239 Lau Wing Hong & Others v. Wong Wor Hung & Another, [2006] 4 HKLRD 671, at para. 145.240 Trial Decision, para. 111 [underscore added].241 Trial Decision, para. 122 [underscore added]. See also para. 128 [“In my view, the plaintiff must make up hismind and set out in his pleadings exactly what declaration he seeks”].242 Trial Decision, para. 958 [“I acknowledge that in expressing this opinion, I am doing precisely what I wasuncomfortable with in the course of the trial, namely setting boundaries that are ill defined and not containedwithin usual metes and bounds. They are, however, boundaries that are shaped by the evidence”]