Appellants factum - Woodward & Company

49approved the de facto amendment of this explicit “all or nothing” claim for ownershipand jurisdiction into claims for Aboriginal title and Aboriginal self-government. 279168. The Trial Judge misapplied Delgamuukw. In fact, Delgamuukw supports theview that, even if a de facto amendment were required (which the Plaintiff denies), “itwas just and appropriate for the trial judge to allow for [a de facto] amendment topleadings which were framed when the jurisprudence was in its infancy”. 2806. If amendments were required, the Trial Judge should have granted leave toamend169. Even if amendments were required, either formal or de facto, then the TrialJudge erred by refusing to permit such amendments.170. In Dempster v. Fairbanks, Chief Justice McDonald of the Nova Scotia Court ofAppeal considered whether a trial judge was correct in denying a plaintiff’s claim,notwithstanding the plaintiff’s success on the merits, simply because the pleadingsfailed to include a necessary averment. Chief Justice McDonald stated:It is to be regretted, I think, that the learned Judge did not, before deliveringjudgment, make the amendment on the record necessary to enable him to give ajudgment according to the law and the facts as found by him. And, I think, now,the duty of this court, as it has the power, is to make such amendment, and tointerrupt the judgment that should have been entered in the court below. See Or.38, R. 12, and Or. 57, R. 5 Clack v. Wood, 9 Q.B.D. 276, appears to be clearauthority as to the power of the court to the make any amendment necessary orrequisite to secure justice in the cause or matter before it, when the facts justifythe exercise of the court’s authority. Here, the learned judge has declared hisopinion to be in favour of the plaintiff on the facts and merits, and I concur withhis opinion in that regard. An undue regard to a nice technical objection,however, prevents doing justice between these parties. It appears to me, to beclearly a case where the authority of this court should properly interpose. I am,279 Delgamuukw v. British Columbia (1993), 104 D.L.R. (4th) 470, [1993] 5 W.W.R. 97 (B.C.C.A.), paras. 871-76, 906,1087 (per Lambert J.A., dissenting); aff’d [1997] 3 S.C.R. 1010, paras. 74-75.280 Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010, para. 75.