The Supreme Court of Canada has been asked to wade into the controversial debate over mining claims inside the proposed Tombstone Territorial Park.

The Tr'ondek Hwech'in First Nation has asked the highest court to hear its argument that claims staked inside the park boundary prior to the completion of the first nation's land claim should be subject to the terms of the settlement. If the court agrees to hear the case, it will be the first time a Yukon first nation will ask the court for a ruling on matters arising out of its land claim settlement.

Canadian United Minerals Inc. has argued it staked the claims under the Yukon Quartz Mining Act, and is subject to the limitations and rights set out in the act, including the full right to work the claims and have reasonable access to them.

Then Supreme Court judge Ralph Hudson wrote in January 2003 that the mineral claims would stand, and Canadian United would be allowed to operate and manage the claims in accordance with the provisions of the Quartz Mining Act.

Hudson, however, also directed land use and other regulatory officials to issue permits to the mining company only after taking into consideration the objectives set out in the Tr'ondek settlement for management of the park.

The first nation also maintains in its 16 pages of arguments to have the Supreme Court of Canada hear its case that Hudson found the first nation did indeed raise a valid issue a 'justiciable issue' which the courts could be called upon to settle.

The Yukon Court of Appeal, however, ruled that Hudson went too far in suggesting regulatory officials must take into consideration the land claim agreement or modern treaty in making management decisions involving the 22 mineral claims.

The three justices of the court also dismissed the appeal of Hudson's decision by the Tr'ondek Hwech'in, as well as a cross-appeal filed by Canadian United.

The Court of Appeal found that what the parties were looking for was more of an 'advisory opinion' regarding their different positions.

'I believe that the courts ought to be cautious in acceding to requests of this sort,' wrote Court of Appeal Justice John Hall in his January decision.

In its request to the Yukon Supreme Court of Canada, the Tr'ondek Hwech'in First Nation is asking the court to answer two questions:

• Did the Court of Appeal err in finding there was no issue of law 'justiciable issue' that arose out of the dispute regarding the application of the Quartz Mining Act over the land claim settlement?

• Where a 'justiciable issue' does exist, and there was no appeal of that original finding, can the Court of Appeal choose not to resolve the 'justiciable issue?'

While the Yukon government has participated at the two previous levels of court in support of the first nation, cabinet spokesman Peter Carr said this morning the Yukon government will not be seeking participation at the Supreme Court of Canada.

Joel White, head of Canadian United Minerals, was in the field and could not be reached for comment this morning.

Tr'ondek Chief Darren Taylor said today the first nation wants to know if the mining activity conducted and proposed by Canadian United has to meet the objectives of the park, and its management plan.

The first nation, he said, is not opposed to mining, and does recognize the company has valid claims inside the park boundary.

'We do recognize his right to mine, but on the other hand, does he have to meet the objectives of chapter 10, schedule A?'

The chief said it is a matter of interpretation, but one that could affect the entire land claim agreement if everything in the agreement is suddenly open to interpretation.

The people from the first nation who negotiated the agreements are the same as those now working with it and implementing the various provisions. It's not the same way with the other governments, he suggested.