Appellants factum - Woodward & Company

45and on behalf of their houses for “ownership” and “jurisdiction” over 133 distinctterritories. 262154. By the time the case reached the Supreme Court of Canada, the original claimhad been altered in two different ways:a. the individual claims by each House had been amalgamated into twocommunal claims, one advanced on behalf of each nation; andb. the claims for ownership and jurisdiction had been replaced with claims forAboriginal title and self-government. 263155. The Trial Judge in the present case considered himself bound by Lamer C.J.’srejection of the first attempted alteration; i.e. the amalgamation of individual intocommunal claims:The [First Nations] appellants argue that the respondents did not experienceprejudice since the collective and individual claims are related to the extent thatthe territory claimed by each nation is merely the sum of the individual claims ofeach House; the external boundaries of the collective claims therefore representthe outer boundaries of the outer territories. Although that argument carriesconsiderable weight, it does not address the basic point that the collective claimswere simply not in issue at trial. To frame the case in a different manner onappeal would retroactively deny the respondents the opportunity to know theappellants’ case … This defect in the pleadings prevents the Court fromconsidering the merits of this appeal … 264156. With respect, Delgamuukw is wholly distinguishable on this point. The Plaintiffsin Delgamuukw sought to reframe several key elements of their claim on appeal, afterlitigating their claims on an entirely different basis. For example, the shift from 51communal claims to 2 national claims represents a radical change in the claimantAboriginal groups.262 Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010, para. 73.263 Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010, para. 73.264 Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010, paras. 76-77 [underscore added]; quoted in TrialDecision, para. 113.