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Donald Marshall Jr. after native rights ruling in 2001. (ANDREW VAUGHAN)
Donald Marshall Jr. after native rights ruling in 2001. (ANDREW VAUGHAN)

Obituary

The life and death of Donald Marshall Jr. Add to ...

After submitting the final report to the Nova Scotia cabinet, Chief Justice Hickman said: "I really hope that at long last one Donald Marshall Jr. will stand high in the eyes of Nova Scotians, where he deserves to stand." Later that year, the provincial government awarded Mr. Marshall, who by then was 36 years old, a mere $700,000 in compensation for an ordeal that had lasted nearly two decades.

Three years later, Mr. Marshall was in trouble with the law once again when he was caught catching and selling eels with illegal nets, out of season, without a licence in Pomquet Harbour, near Antigonish, N.S. When officials from the federal Department of Fisheries and Oceans told Mr. Marshall and his companion to stop fishing, he didn't comply. Instead, Mr. Marshall, a proud Mi'kmaq who had learned the hard way to be wary of authority, phoned his friend Chief Paul and asked his advice. "I told him to keep fishing," Chief Paul said later. "I felt strongly that he had a right to be there and gain a livelihood."

The real trouble came when Mr. Marshall left the shore and sold his catch - 210 kilograms of eels - for $787.10. That exchange of money and goods provoked a legal battle that lasted six years, involved three courts and provoked learned discussions at the Supreme Court of Canada about the historic treaty rights that the Mi'kmaq had been granted in 1760 by the British Crown.

"This time I went to the Supreme Court for fishing. I wasn't there for myself. I was there for my people. It was more touching than anything else," Mr. Marshall said in September 1999 after the Supreme Court handed down its ruling, acquitting him on three charges of illegally catching and selling eels, and confirming native rights to make a living by fishing and hunting. Admitting he had thought about giving up the fight, he said that he kept going because "I knew that I had dealt with bigger problems."

His past problems were compounded by serious addictions to drink and cigarettes. In 2003, he had a double lung transplant in an eight-hour operation in a Toronto hospital to try to overcome the ravages of chronic obstructive pulmonary disease, a progressive and ultimately fatal lung disease whose symptoms are chronic bronchitis and emphysema.

Mr. Marshall later said the recovery was tougher than two trips to the Supreme Court.

He was feeling well enough in June of 2007 to celebrate his marriage to non-native Colleen D'Orsay, but the honeymoon was short-lived. Less than a year later she complained to The Cape Breton Post that Mr. Marshall had received only $156,000 of the $2-million the 33 Eastern Canadian chiefs of the Atlantic Policy Congress of First Nations Chiefs Secretariat had pledged to pay him in 2001 in recognition of his long struggle on their behalf to establish their historic fishing and hunting rights.

One of the exceptions was Chief Paul, who had given Mr. Marshall at least $100,000. "All I can say is that when I make a commitment, I stand by it," he told The Cape Breton Post, suggesting that Mr. Marshall was facing continuing health problems from his double lung transplant. "We felt it was the honourable thing to do, to be able to assist him."

Then, in October of 2008, Mr. Marshall appeared in a Sydney court accused of assaulting and threatening his wife and her former husband, lawyer Luke Wintermans.

Ms. D'Orsay was at Mr. Marshall's side when Mr. Marshall pleaded not guilty this January and his lawyer argued there had been an abuse of process when a local Crown attorney telephoned a police sergeant seeking an update, after some of the charges were laid. The matter, which has not been resolved, was on the court docket for later this month.

About a week ago, Mr. Marshall was admitted to hospital in Sydney, suffering from kidney failure, probably as a consequence of the anti-rejection drugs he had been taking since his double lung transplant six years ago. He died, aged 55, at 1:30 a.m. Thursday in the intensive care unit, surrounded by relatives.

Mr. Marshall's roller-coaster ride through the Canadian criminal justice system was finally over. "We pay the money, we have the public inquiry," said Mr. Ruby, his former lawyer, "but we can't make them whole again."

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