Appellants factum - Woodward & Company

39As the evidence unfolded it became apparent that in order to assert his claim, theplaintiff had to conform to the Eurocentric need to define boundaries. Traditionalboundaries, surveyed with proper metes and bounds were not a possibility; someboundaries simply had to be found.…In Tsilhqot’in semi-nomadic society there were no boundaries in the sense that aboundary is currently understood with reference to set metes and bounds. In hisdiscussion of Tsilhqot’in boundaries on p. 6 of his report, Dr. Brealey said:Reconstructing boundaries of oral, relatively nomadic, societies in acartographic register is an exceedingly hazardous undertaking, and neverthe more so than in the Chilcotin country … 243132. In Delgamuukw, La Forest J. cautioned that the inherent challenges of definingAboriginal boundaries should prompt negotiation, not the rejection of Aboriginal titleclaims:… [I]t is self-evident that an aboriginal society asserting the right to live on itsancestral lands must specify the area which has been continuously used andoccupied. That is, the general boundaries of the occupied territory should beidentified. I recognize, however, that when dealing with vast tracts of territory itmay be impossible to identify geographical limits with scientific precision.Nonetheless, this should not preclude the recognition of a general right ofoccupation of the affected land. Rather, the drawing of exact territorial limits canbe settled by subsequent negotiations between the aboriginal claimants and thegovernment. 244Note that La Forest J. called upon Aboriginal claimants to identify only the “generalboundaries of the occupied territory”.133. The test for proving Aboriginal title makes it impracticable to predict the outcomeof trial with precision. The inquiry into whether an Aboriginal claimant has satisfied thethreshold of occupation sufficient to establish Aboriginal title draws on a host of factors:Physical occupation may be established in a variety of ways, ranging from theconstruction of dwellings through cultivation and enclosure of fields to regular useof definite tracts of land for hunting, fishing or otherwise exploiting its resources:see McNeil, Common Law Aboriginal Title, at pp. 201-2. In considering whether243 Trial Decision, paras. 645, 648 [underscore added].244 Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010, para. 195 [underscore in original, italics added].