Appellants factum - Woodward & Company

44process and the legal requirements of proving Aboriginal title. These artificialboundaries hold no particular cultural significance or relevance from the Tsilhqot’inperspective. In fact, most if not all of the Tsilhqot’in witnesses say that the entire ClaimArea and lands beyond the Claim Area are subject to Tsilhqot’in Aboriginal title. TheTsilhqot’in did not divide up the Claim Area in this way.150. Indeed, as the Trial Judge observed, “[i]n Tsilhqot’in semi-nomadic society therewere no boundaries in the sense that a boundary is currently understood with referenceto set metes and bounds”. 258 He specifically noted that the boundaries of Tachelach’edwere “entirely artificial” 259 but that “in order to assert his claim, the plaintiff had toconform to the Eurocentric need to define boundaries”. 260 It is not surprising thatTsilhqot’in witnesses might differ in their description of boundaries that are “entirelyartificial” to them.151. The error of the Trial Judge’s reasoning is clear from its application. On hisapproach, to avoid prejudice to the Defendants, the Plaintiff was required to: (a)anticipate with precision the “definite tracts” of land over which the Trial Judge wouldultimately find Aboriginal title; (b) plead these specific tracts in his Statement of Claim;and then (c) prove at trial that Tsilhqot’in people universally recognized and agreed onthe boundaries of these specific tracts of land. With respect, this approach compoundsimpossibilities and is clearly wrong in law. The result of such a proposition would bethat no Aboriginal title claim could ever be proved.(c) Delgamuukw is not binding or applicable152. Finally, the Trial Judge improperly considered himself bound by Delgamuukw tofind prejudice to the Defendants. 261153. At trial in Delgamuukw, 51 Chiefs representing most of the Houses of theGitksan and Wet’suwet’en nations, advanced 51 individual claims on their own behalf258 Trial Decision, para. 648.259 Trial Decision, para. 641.260 Trial Decision, para. 645.261 Trial Decision, para. 129.