KI Motion For Tomorrow May 23, 2008 10.00 am

Court of Appeal File No. C48641

COURT OF APPEAL FOR ONTARIO

B E T W E E N:
PLATINEX INC.
Plaintiff
(Respondent in Appeal)
- and –

KITCHENUHMAYKOOSIB INNINUWUG FIRST NATION,
DONNY MORRIS, JACK MCKAY, CECILIA BEGG, SAMUEL MCKAY,
JOHN CUTFEET, EVELYN QUEQUISH, DARRYL SAINNAWAP,
ENUS MCKAY, ENO CHAPMAN, RANDY NANOKEESIC,
JANE DOE, JOHN DOE and PERSONS UNKNOWN
Defendants
- and –

KITCHENUHMAYKOOSIB INNINUWUG FIRST NATION,
DONNY MORRIS, JACK MCKAY, CECILIA BEGG, SAMUEL MCKAY,
DARRYL SAINNAWAP, BRUCE SAKAKEEP
JOHN CUTFEET, ENUS KcKAY and EVELYN QUEQUISH

Respondents on Contempt Motion
(Appellants)
– and –

THE MINISTER OF NORTHERN DEVELOPMENT AND MINES
Intervenor
(Respondent in Appeal)

NOTICE OF MOTION
(Returnable at Toronto, May 23, 2008)



THE APPELLANTS, WILL MAKE A MOTION to a judge of the Court of Appeal on Friday, May 23, 2008 at 10:00 a.m., or as soon after that time as the motion can be heard, at Osgoode Hall, 130 Queen Street West, Toronto.

PROPOSED METHOD OF HEARING: The motion is to be heard orally.


THE MOTION IS FOR:


an order staying the order appealed from;

an order that the appellants be released from incarceration forthwith pending the disposition of the appeal; or, in the alternative,

an order that the appellants have the opportunity to observe and participate in the appeal via video-teleconference;

an order abridging the time for service and filing of this motion;

their costs of this motion on a substantial indemnity basis; and

such further and other relief as to this Honourable Court may seem just and appropriate in
the circumstances.


THE GROUNDS FOR THE MOTION ARE:



The appellants were sentenced on March 17, 2008 to six months in prison for civil contempt of court, arising from their refusal to obey an order which conflicts with their duties under their traditional laws.

The appellants have filed an appeal from sentence pursuant to section 6(1)(b) of the Courts of Justice Act.

On April 22, 2008, The Honourable Justice Moldaver granted a motion to expedite filed by the Ministry of the Attorney General and the hearing of the appeal was scheduled for May 28, 2008, at 10:30am in Courtroom 10.

In sentencing submissions Ontario took the position that the KI Six should be fined rather than incarcerated because KI had indicated that fines would harm their community more than incarcerating the community’s leadership. Counsel for Ontario stressed that Ontario wanted KI to “feel” the pain of stiff fines.

The appellants Donny Morris, Jack McKay, Sam McKay, Darryl Sainnawap and Bruce Sakakeep are currently incarcerated at Thunder Bay Detention Centre. Cecilia Begg is being held at Thunder Bay Jail.

As a public outcry followed the incarceration of the KI Six, Ontario’s Premier and Minister of Aboriginal Affairs repeatedly stated in public that they would “support the appeals” of these appellants and the KI Six, and that they “never wanted to have the appellants incarcerated”.

The Minister has also indicated in statements to the media and to the Legislature that Ontario would prefer to have the appellants released as soon as possible.

Ontario’s Minister of Aboriginal Affairs has also stated in conversations with KI and leaders who have not been incarcerated that Ontario would “pay all the costs of the appeals”.

The Minister of Aboriginal Affairs and his staff have also advised that they now wish to negotiate with the appellants to address the issues which led to their sentences, namely the current Ontario law and policy on mining and mineral exploration, which gives priority to mining and exploration over Aboriginal rights and interests.

The Minister and his senior officials have also advised that they understand that no negotiations can take place without the participation of the incarcerated community leaders, who must therefore be released as soon as possible.

Senior officials of the Ministry of Aboriginal Affairs have also advised they now realize that without a negotiated agreement between the appellants and Ontario it is far less likely that the appeal of sentences, to be heard on May 28, 2008, will succeed.

There could be substantial prejudice to the appellants and their communities if this motion is denied because they will be unable to negotiate with Ontario. The respondents on this motion will suffer no prejudice if the sentences are stayed pending the disposition of the appeals.

The appeal has sufficient merit that to deny the appellants release would cause undue hardship, including hampering their involvement in negotiations of the underlying issues and full participation in preparation of the appeal.

The appellants will agree to surrender themselves in accordance with any order made at the conclusion of the appeal.

The detention of the appellants is not otherwise necessary or in the public interest.

Such further and other grounds as counsel may advise and this Honourable Court permit.

THE FOLLOWING DOCUMENTARY EVIDENCE WILL BE USED ON
THE HEARING OF THE MOTION:


1. The Appeal Book and the factum of the appellants on the appeal;

2. The affidavit of Chief Paula Sherman; and

together with such further and other material as counsel may advise and this Honourable
Court may permit.

CERTIFICATE: The moving party estimates the time for oral argument of this motion to be 15 minutes.

TORONTO, May 16, 2008




CHRISTOPHER M. REID
Barrister and Solicitor
154 Monarch Park Avenue
Toronto, Ontario, M4J 4R6
Tel: (416) 466-9928
Fax: (416) 466-1852
Counsel for the Appellants


TO:

Owen Young and Ria Tzimas, Counsel
Ministry of the Attorney General
Crown Law Office - Civil
720 Bay Street, 8th Floor
Toronto, Ontario, M5G 2K1

Counsel for the respondent Crown


Neal Smitheman, Tracy Pratt, Counsel
Fasken Martineau DuMoulin LLP
66 Wellington St. West
Suite 4200
T.D. Bank Tower P.O. Box 20
Toronto, ON M5K 1N6
Tel: (416) 366-838 l
Fax: (416) 364-7813

Counsel for the Plaintiff / Respondent on Appeal and Motion









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