Appellants factum - Woodward & Company

40occupation sufficient to ground title is established, “one must take into accountthe group’s size, manner of life, material resources, and technological abilities,and the character of the lands claimed” … 245134. Further complicating matters is the nascent state of the law of Aboriginal title. Acentral issue at trial was how to properly define or interpret the “regular use of definitetracts of land for hunting, fishing or otherwise exploiting its resources” 246 that suffices toestablish Aboriginal title. The Defendants advanced a “postage stamp” approach thatwould recognize Aboriginal title only to very specific sites, such as “a salt lick or anarrow defile between mountains or cliffs”. 247The Trial Judge agreed with the Plaintiffthat Aboriginal title extends more broadly to the lands “over which Indigenous peopleroamed on a regular basis; land that ultimately defined and sustained them as apeople”. 248135. This issue remains unresolved. As a result, it is simply not realistic to expect thePlaintiff to have pleaded, in the alternative, every possible variation on the “definitetracts” of the Claim Area to which Aboriginal title might be established at trial, or afterappeals. Such a requirement would have compelled the Plaintiff to plead alternativeAboriginal title claims to everything from individual salt licks and hunting blinds in theClaim Area to the broader hunting and trapping grounds – and everything in between.136. Fortunately, the law of declaratory relief does not demand this absurd result.Respectfully, the Trial Judge’s reliance on Biss for this proposition was misplaced. Asreviewed above, courts have a broad discretion to grant declarations on different ornarrower terms than those specifically pleaded by the plaintiff. This is particularlyappropriate where, as here, the proper terms of declaratory relief cannot be decideduntil the facts are determined at trial.245 Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010, para. 149 [quotation from Brian Slattery, “UnderstandingAboriginal Rights” (1987) 66 Can. Bar. Rev. 727, at p. 758].246 Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010, para. 149.247 Trial Decision, paras. 608-10.248 Trial Decision, para. 1377.