On January 24, 2013, the Supreme Court of Canada granted leave to appeal with costs to members of the Tsilhqot'in Nation (the "Tsilhqot'in") in relation to their claim seeking, among other things, recognition of Aboriginal title to two tracts of land in the Tsilhqot'in traditional territory.
In response to British Columbia's approval of a private company's plan to commence logging in an area in the interior of the province in 1989, members of the Tsilhqot'in initiated an action seeking the recognition of certain Aboriginal rights, a declaration of title over their traditional territory (the "Claim Area") and damages for unjustifiable infringements of rights by the Crown. The trial occupied 339 court days over a span of nearly five years. Twenty-four Tsilhqot'in witnesses testified in person and five provided evidence by affidavit. The parties also presented evidence from experts in the fields of anthropology, archeology, cartography and biology.
The trial judge, the late Justice Vickers, applied the test for Aboriginal title from the Supreme Court of Canada's decision in Delgamuukw v. B.C.,  3 S.C.R. 1010 and held that the available evidence was sufficient to establish title over certain portions of the Claim Area.
Although Justice Vickers decided he could not issue a "formal" declaration of Aboriginal title over areas smaller than the Claim Area due to a technical error in the pleadings, he nonetheless opined that Aboriginal title had been established on the evidence adduced, without prejudice to future claims by the Tsilhqot'in to those areas.
Justice Vickers also declared that the B.C. Forest Act did not apply to Aboriginal title lands and that the Tsilhqot'in have the right to: (i) hunt and trap throughout the Claim Area, and (ii) trade skins and pelts in order to support moderate livelihoods.
On appeal to the British Columbia Court of Appeal, the First Nation submitted that the trial judge erred in declining to issue a declaration that title to the entire Claim Area had been proven and by treating the claim as an "all or nothing" one. British Columbia and Canada appealed the trial judge's decision to allow the possibility of future claims of Aboriginal title over various smaller portions of the Claim Area.
The Court of Appeal, citing the Supreme Court's decisions in Delgamuukw and R. v. Marshall; R. v. Bernard,  2 S.C.R. 220 as authority, held that the trial judge erred in law by applying a broad "regional or territorial" standard to the Tsilhqot'in's title claim rather than the site-specific standard required by Supreme Court of Canada jurisprudence. The Court also opined that broad claims to title made on the basis of a territorial theory of occupation did not fit within the purpose of s. 35 of the Constitution Act, 1982, which is the reconciliation of Aboriginal interests with Crown sovereignty. The Court instead suggested that reconciliation can be achieved, short of recognizing broad claims to title, by allowing an Aboriginal community to live in traditional locales and to exercise rights to use surrounding territorial land that it cultivated or intensively took resources from but did not occupy.
The notion of what constitutes "occupation" was a central theme in this case. In considering competing Aboriginal and non-Aboriginal concepts of occupation, particularly in light of the difficulties nomadic and semi-nomadic Aboriginal communities now have proving the level of site-specific occupation required to establish title, the Court of Appeal commented that this case presented "a need to search out a practical compromise that can protect Aboriginal traditions without unnecessarily interfering with Crown sovereignty and with the well-being of all Canadians."
Consequently, the Court of Appeal upheld the trial judge's findings in respect of the Tsilhqot'in's rights to hunt, trap and trade throughout the Claim Area but opined that the legal standard of site-specificity required to found an Aboriginal title claim had not been met. For this reason, the Court declined to comment on Justice Vickers' holding on the non-applicability of the B.C. Forest Act to Aboriginal title lands.
The Court of Appeal ultimately agreed with Justice Vickers that future title claims by the Tsilhqot'in to smaller and more specific areas within the Claim Area should not be prejudiced, commenting that the test for Aboriginal title has been a complex "moving target" in Canadian law, and the "unique" circumstances of the case led them to conclude that the case should not bar future title claims to smaller tracts of land within the Claim Area simply because the plaintiffs chose to pursue one legal theory over another.