Appellants factum - Woodward & Company

48uncertainty”. 272 The meaning of “regular use of definite tracts of land” remainsunresolved and highly contested . There is no guidance to this day as to how suchtracts should be delineated or pleaded.165. Aboriginal rights claims are frequently determined on appeal on a different basisthan they were presented at trial. For example, the lower courts in the R. v. Côtélitigation rendered judgment before the Van der Peet trilogy was decided. TheSupreme Court of Canada, on appeal, frankly conceded that “the courts below did notconsider the possibility that the appellants may have enjoyed a free-standing aboriginalright to fish independent of title”. 273 No such claim was advanced by the appellants. 274Nonetheless, the Court applied the factual findings at trial to conclude that theappellants had established an Aboriginal right to fish for food, notwithstanding no suchright had been claimed or litigated in the courts below. 275166. Flexibility is demanded in the face of considerable legal uncertainty to ensurethat the Tsilhqot’in people are not unjustly penalized for prevailing uncertainty in the law.After a full trial in which Tsilhqot’in occupation throughout the Claim Area was fullycanvassed, the proper recourse is recognition of Aboriginal title along the “boundariesthat are shaped by the evidence”. 276167. It is also noteworthy that in Delgamuukw, the trial judge and this Courtconsidered claims to Aboriginal sustenance rights, even though they were not pleadedby the plaintiffs. 277 In fact, in Delgamuukw (unlike here), plaintiffs’ counsel explicitlyassured the trial judge that their claim was “all or nothing”; that is, “the claim was forownership and jurisdiction, and the plaintiffs were not seeking any lesser relief”. 278Lambert J.A., dissenting, and ultimately the Supreme Court of Canada, nonetheless272 Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010, para. 75.273 R. v. Côté, [1996] 3 S.C.R. 139, para. 11.274 R. v. Côté, [1996] 3 S.C.R. 139, paras. 35-36.275 R. v. Côté, [1996] 3 S.C.R. 139, para. 37.276 Trial Decision, para. 958.277 Delgamuukw v. British Columbia (1993), 104 D.L.R. (4th) 470, [1993] 5 W.W.R. 97 (B.C.C.A.), paras. 23-25, 263,278-79 (per Macfarlane J.A.); paras. 462-68, 519 (per Wallace J.A.), paras. 1031, 1071 (per Lambert J.A.).278 Delgamuukw v. British Columbia (1993), 104 D.L.R. (4th) 470, [1993] 5 W.W.R. 97 (B.C.C.A.), para. 24 (perMacfarlane J.A.); see also para. 429 (per Wallace J.A.).