Appellants factum - Woodward & Company

43145. After an extensive trial in which the location, extent and intensity of Tsilhqot’inoccupation throughout the Claim Area was thoroughly litigated, the Defendants cannotbe said to be prejudiced by declarations of Aboriginal title that are shaped by theresulting evidentiary record.146. This is underscored by the fact that British Columbia, in its Statement of Defence,“put the Plaintiff to the strict proof of the location and extent of such limited portions” ofthe Claim Area where Tsilhqot’in occupation supports Aboriginal title. 254 While the TrialJudge correctly observed that this “is not a de facto amendment of the plaintiff’spleadings”, 255 it certainly demonstrates that there is no surprise or prejudice to theDefendants from declaratory relief granted on exactly those terms.(b) Aboriginal title is shaped by the evidence, not arbitrary boundaries147. The Defendants argued that they were prejudiced by the lack of opportunity tocross-examine witnesses on the boundaries of any individual definite tracts of land towhich Aboriginal title might be established. As an example, they pointed to the fact thatthe southern boundary of Tachelach'ed was described differently by three Aboriginalwitnesses. 256148. The Defendants’ concern with testing the exact boundaries of “smaller definitetracts of land” is misconceived. Aboriginal title arises from actual use and occupation ofthe land at sovereignty. It is established by proof of exclusive, physical occupationsufficient to ground Aboriginal title to the land. 257 There is no super-added requirementthat members of the Aboriginal group had a shared understanding of the preciseboundaries of individual, defined tracts.149. It is irrelevant whether Aboriginal witnesses agree on the precise boundaries oftracts of land within the Claim Area. These boundaries are the product of the trial254 British Columbia, Amended Statement of Defence, para. 12; Trial Decision, para. 121.255 Trial Decision, para. 121.256 Trial Decision, para. 111 [underscore added]. See also: Tsilhqot'in Nation v. British Columbia, 2008 BCSC 600,[2008] B.C.J. No. 871, para. 9.257 R. v. Marshall; R. v. Bernard, [2005] 2 S.C.R. 220, 2005 SCC 43, paras. 56, 61-62.