Appellants factum - Woodward & Company

50therefore, of opinion, that all necessary amendments should be made to theplaintiff’s statement of claim. 281171. This approach is consistent with the trend over the last several decades forcourts to promote justice rather than defeat meritorious claims on technical grounds. Todeny a finding of Aboriginal title in this case because the Plaintiff claimed title to certaindefined lands but did not include the words “or portions thereof” would be unjust, even ifthese words were technically required. It would be an unfortunate throwback to timeswhen technical, procedural rules designed for different kinds of cases were appliedunjustly. As Mr. Justice Spence stated in Koury v. The Queen,To give effect to this submission would be to ignore the common sense of the trial.Courts of Appeal do not now operate under 19 th -century procedural limitations. 282172. It is respectfully submitted that this Honourable Court should make thedeclaration that the learned Trial Judge failed to make in the Court below.7. Fairness and justice demand recognition of Tsilhqot’in Aboriginal title173. With respect, after the full trial of this action, it would be tragic and unjust todeprive the Tsilhqot’in people of judicial recognition of their proven Aboriginal title in theClaim Area.174. There could not be a more compelling case for judicial recognition of Aboriginaltitle. As found by the Trial Judge:• From before contact to the present day, the Tsilhqot’in people havecontinuously existed as a distinctive Aboriginal group, unified by their sharedlanguage, customs, traditions, history, territory and resources; 283• The Claim Area is situated “well within” 284 the boundaries of the broaderTsilhqot’in territory and these boundaries were recognized and defended; 285281 Dempster v. Fairbanks (1897), 29 N.S.R. 456 (N.S.C.A.). See also: Flinn v. Canadian Surety Co., [1935] 2 D.L.R.771 (N.S.C.A.), at p. 772.282 Koury v. The Queen, [1964] S.C.R. 212, p. 218, cited with approval in R. v. Guimond, [1979] 1 S.C.R. 960, at p. 972283 Trial Decision, paras. 437-72.