Appellants factum - Woodward & Company

57Claim Area. British Columbia also says that the plaintiff has approached thequestion of exclusivity from a territorial, rather than a site-specific, perspective.In his reply, the plaintiff argues that exclusivity does not require site-specificevidence of control directed at “each marsh meadow and berry patch”. What isrequired is effective control over the land in question.It is fair to say that the argument made by the plaintiff was directed towards aconclusion that Tsilhqot’in people had vigorously defended their territory and hadclosely monitored and controlled its use by others. British Columbia’s position isconsistent with the view that site-specific definite tracts are required in the proofof Aboriginal title and thus proof of site-specific exclusivity is also required.There is merit in both arguments. However, I took the plaintiff’s argument to be areview of the evidence that would lead not just to a defence of territory but to anexclusive use of the Claim Area. I am unable to conclude there was sufficientoccupation of the Claim Area as a whole. Therefore, my focus on exclusivity willbe directed to those parts of the land, inside and outside the Claim Area, that inmy view do demonstrate a sufficient degree of exclusive occupation to support afinding of Aboriginal title. 314191. With respect, the Trial Judge proceeded on the wrong legal principle byassessing occupation in isolation from, and without regard to, the degree of physicalcontrol exercised over the land. This fundamental legal error obviates his findings ofinsufficient Tsilhqot’in occupation outside the Proven Title Area. Had the Trial Judgeproperly assessed occupation in light of the high degree of exclusive physical controlexercised by the Tsilhqot’in people over the Claim Area, he would have arrived at adifferent result based on his findings of fact.192. It is important to recall that Tsilhqot’in occupation of the lands throughout theClaim Area at sovereignty is not in question. The Trial Judge explicitly found thatTsilhqot’in people have “continuously hunted, trapped and traded throughout the ClaimArea and beyond from pre-contact times to the present day”. 315314 Trial Decision, paras. 925-28 [underscore added].315 Trial Decision, para. 1268 [underscore added].