Appellants factum - Woodward & Company

46157. Proof of an ancestral and modern rights-bearing Aboriginal community is acentral element of proving Aboriginal title. In the present case, the Parties devotedconsiderable efforts litigating the appropriate Aboriginal group to hold Aboriginal titleand rights. The Trial Judge directed a significant portion of his Reasons for Judgmentto deciding this issue, explaining his conclusion that Aboriginal title vested in theTsilhqot’in Nation and not sub-groups, and reviewing the underlying factual support forthis conclusion. Substituting a new claimant group on appeal, as the Plaintiffsattempted in Delgamuukw, retroactively denies the Defendants the opportunity torespond to or test the supporting evidence at trial.158. It also has serious ramifications for other elements of the claim. Aboriginal titledemands proof of exclusive occupation. By definition, exclusivity of occupation dependson the Aboriginal group alleged to have exerted control over the lands in question, tothe exclusion of others. 265 Changing the Aboriginal groups said to have exercisedexclusive control over the land again changes the nature of the litigation, andretroactively denies the Defendants the opportunity to test this new theory of exclusivityat trial.159. These serious concerns about prejudice do not arise in the present case. Thetrial was fully litigated on the Plaintiff’s assertion that the Tsilhqot’in Nation holdsAboriginal title. The Plaintiff’s position still stands. It is firmly supported by the TrialJudge’s extensive findings. There are no changes on the key issues of who holdsAboriginal title and exercised exclusive control over the land. The sole “alteration”alleged by the Defendants relates to the extent of Aboriginal title throughout the ClaimArea. As this issue was thoroughly litigated at trial, it can hardly give rise to prejudice.160. Further, Lamer C.J.’s discussion of the second alteration to the pleadings inDelgamuukw is instructive for the present case. Lamer C.J. held that the trial judgewas correct to “allow a de facto amendment” of the plaintiffs’ pleadings from claims ofownership and jurisdiction to claims for Aboriginal title and self-government:265 Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010, para. 155.