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Marshall remembered as reluctant hero who won reforms for Canada's natives

HALIFAX, N.S. - Donald Marshall didn't go in search of causes, but they found him.

HALIFAX, N.S. - Donald Marshall didn't go in search of causes, but they found him.

The Nova Scotia Mi'kmaq was a tough-talking, lanky 17-year-old in Cape Breton when he was charged with the violent murder of a friend, Sandy Seale, who he met up with while walking through a park in Sydney one night in 1971.

The son of a revered native leader, Marshall - who died Thursday at age 55 - was sentenced to life in prison but maintained his innocence throughout his 11 years in prison and was eventually acquitted of the stabbing death in 1983.

His case became one of the first high-profile wrongful convictions in the country and led to a royal commission that brought sweeping changes to a system found to be plagued by incompetence and racism.

It was a saga Marshall surely couldn't have predicted when he was taken from his treasured Cape Breton community of Membertou and jailed by a system he later said robbed him of his youth.

Roseanne Sylvester said her brother never set out to change the system.

"It was all accidental, he didn't really say he was going to do this," she said in an interview after he brother died of complications linked to a double lung transplant in 2003.

"He was a reluctant hero. Everything just came at him and he just tried to handle it the best way he could."

The inquiry put the Nova Scotia justice system under intense scrutiny and produced a seven-volume report that pointed the finger at police, judges, Marshall's original defence lawyers, Crown lawyers and bureaucrats.

"The criminal justice system failed Donald Marshall Jr. at virtually every turn from his arrest and wrongful conviction for murder in 1971 up to and even beyond his acquittal by the Court of Appeal in 1983," said the report.

Roy Ebsary, who bragged of having a prowess with knives, was eventually convicted of manslaughter in Seale's death and spent a year in jail.

But despite his exoneration, the challenges Marshall would face were only beginning when he was set free in his late 20s with few skills and a bitterness his sister said stayed with him through his troubled life.

He soon found himself in conflict with the law over public disturbances, break-ins and impaired driving, which friends linked to the years he spent locked up with serious offenders and left him a changed man.

Marshall, who was one of 13 children of Caroline and Donald Marshall Sr., grand chief of the Mi'kmaq nation, seemed to settle as he aged, and took to fishing for eels like his father had.

But what he saw as a means of making a modest living, Fisheries officers viewed as a clear violation of federal law and warned him to stop.

Marshall didn't and was arrested and convicted again, this time for catching 210 kilograms of eels out of season and without a licence.

Bruce Wildsmith, who represented Marshall in the case, said the soft-spoken man was very reluctant to be thrust back into the limelight, but saw the value of taking the case for native fishing rights to the highest court in the land.

"He was a relatively shy person, but knowing the importance of the rights ... he thought it was the right thing to do," Wildsmith said from his home in Lunenburg County.

"I think he will be one of the most significant figures in Mi'kmaq history. He'll be legendary."

In 1999, the Supreme Court of Canada upheld a centuries-old treaty between Mi'kmaq natives and the British Crown in acquitting Marshall.

The ruling also found that natives have the right to make a moderate living by hunting, fishing and gathering, a decision that had the potential to fundamentally recast native access to natural resources.

For Marshall, who led the fight with 13 native chiefs, the case represented a final vindication of native claims that ancient treaties still entitle them to fish, hunt and gather independent of government control.

"It was clear in my mind that the more we fought it, the more powers we got," he said at the time. "At times I almost gave up ... but I've dealt with bigger problems before."

John Paul of the Atlantic Policy Congress said Marshall, who was married and had a baby son, felt great pride in the court decision and hoped it might give people struggling with poverty on reserves a chance to change their lives.

"He was very proud of what happened as a result of the Supreme Court decision and very hopeful that it would help all of our people in all our communities," he said.

"It really created a sense of a new beginning for our communities to give them hope and confidence that our treaties are valid and are recognized by the highest court in the land."

Still, both Wildsmith and Paul say Marshall was deeply frustrated that the federal government had done little to fully implement what has come to be known as the Marshall decision.

Wildsmith said the native fishery is still not rights-based and remains regulated by Ottawa, with few aboriginals actually receiving the licences they need to go out on the water.

The point is more poignant, Wildsmith said, since he will mark the 10-year anniversary of the decision on Sept. 17 without Marshall.

"He believed that the rights that he had fought for had not been properly implemented," he said. "There is frustration that, 10 years later, nothing's been done."

Marshall worked quietly behind the scenes with chiefs to try to address the problem, but was sidelined by chronic obstructive pulmonary disease, a potentially fatal airflow obstruction associated mainly with emphysema and chronic bronchitis.

He underwent an eight-hour operation in Toronto to replace both of his failing lungs. Sylvester said he had been ailing in recent months as his began kidneys to fail because of the anti-rejection drugs.

In an interview months after the double transplant, Marshall said the legal battles were nothing compared with such a major medical procedure.

"This was the toughest," Marshall said.

"You know, I went to the Supreme Court of Canada twice and when it came down to challenging myself and my whole life, it was very difficult."

 
 
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