Mark Mattson chases the waterfront polluters that the cops don’t touch

Mark Mattson’s life sounds like it should be the basis for a prime-time television drama: he’s part private investigator, part scientist, part crusading lawyer and part media advocate. The handsome, goateed, fortysomething lawyer scours Lake Ontario in a ball cap and sunglasses at the helm of the Angus Bruce, his 6.7-metre patrol boat, looking for leaky sewage pipes and other signs of pollution. He takes photographs and water samples from contaminated sites, documents the lab results and presents legal briefs on violations of environmental law to the authorities. If they won’t prosecute, he sometimes does, utilizing private-prosecution provisions in the Marine Act that allow him to bring criminal charges against companies and governments that break the law. He loves Lake Ontario and hates to see it polluted, and because the government won’t police the lake, he does. He is (cue theme music) The Waterkeeper.

“These city cops are not enforcing environmental law,” Mattson says aboard the Angus Bruce one day in late May, gesturing towards a Toronto Police Service boat a few hundred metres from the mouth of the Don River. Pointing at bottles and hunks of unidentifiable crap floating around us, he says it’s easy to tell when you’re getting close to the Don: “Just follow the trail of garbage.”

“The laws protecting that river are just as strong as the laws against welfare fraud, which they do enforce, or the laws against smoking indoors or drinking and driving. We’ve been told that 80 per cent of fishers are checked for their fishing licenses while they’re on the water. But this river, which is protected by statute, is for all intents and purposes dead.” And the cops, he points out, have no training or policies that will enable them to do anything about it.

That’s where Mattson comes in. As the Lake Ontario representative of the US-based Waterkeeper Alliance led by Robert F. Kennedy Jr., Mattson is a former criminal lawyer who’s taken on Lake Ontario as his full-time client.

Of course, the lake doesn’t have any money to pay legal bills, so all of Mattson’s work is volunteer. This is made possible by his wife, Nora. She’s also a lawyer, but one, Mattson says, who “doesn’t do all this pro bono stuff.”

The Waterkeeper Alliance’s literature compares its mandate to “an environmental neighbourhood watch” program. Its members patrol the lake and the rivers flowing into it looking for pollution, then use legal and public-awareness tactics to try to enforce water-quality standards. The charitable organization Mattson fronts is one of six Waterkeeper groups in Canada, and the only one responsible for an entire Great Lake.

When he joined up with Kennedy’s group in 2001, he’d already been pursuing much the same goal for more than four years. In 1996, Mattson co-founded the Environmental Bureau of Investigation (“They pollute, we prosecute” was its slogan) with fellow lawyer Janet Fletcher. That group went two-for-three in private prosecutions, winning a judgement against the city of Kingston over a leaky toxic dump, getting a guilty plea from the city of Hamilton over chemicals in Red Hill Creek but losing in court to the village of Deloro.

“The EBI was sort of based on the FBI,” Mattson says. “We thought of ourselves as environmental cops. Then I realized that Kennedy’s group of lawyers was also trying to do some of the same things.” Which is not to say that his mandate as Lake Ontario Waterkeeper is identical to the now mostly defunct EBI’s: the latter focused on the Fisheries Act and citizen prosecutions almost exclusively, whereas Waterkeeper does a good deal of advocacy and media work and tries to work with law-enforcement agencies rather than around them.

A tour of the Toronto harbour with Mattson and Krystyn Tully, the executive director of Lake Ontario Waterkeeper, yields near-immediate concerns. Five minutes into the trip, Mattson points out a concrete block near the Redpath sugar factory that’s gushing a white froth into the lake in two places. Tully snaps photos as Mattson remarks that they’ll return later to take samples.

We view the long shoreline on the south side of the Leslie Spit as trucks drive in to dump construction waste along the shore, adding to a shoreline made up almost entirely of broken concrete and bricks.

Heading toward the Humber River, Mattson indicates one of his big projects for the summer. “Sunnyside Beach is a stolen place,” he says. “It used to be a hallmark of the Toronto social scene. Then they built the expressway and just cut it off.”

Beaches are currently a major concern for Mattson. Last year, he and Tully monitored Toronto’s beaches to determine how often they were closed because the water was unsafe for swimming. A little-known provincial guideline requires municipalities to ensure that their beaches are clean enough for swimming 95 per cent of the time. Last year Sunnyside Beach was closed 64 per cent of the time. A few hundred metres west is Sir Casmir Gzowski Beach, closed 75 per cent of last summer (the difference is attributable to Gzowski Beach’s proximity to the mouth of the Humber River — you can actually see the water turn from green to muddy brown as you approach it).

This summer, Waterkeeper will be presenting its collected evidence about beach closings to try to get the province to change the guideline to a regulation. Then cities will be required to comply.

It may seem to most of us as if asking cities to ensure Lake Ontario is clean enough to swim in is like asking them to take responsibility for the weather — a near-impossible task. Yet Mattson points out that much of the pollution in the Toronto harbour is caused by old city-owned dumps leaking pollutants into the water and city storm drains overflowing sewage into rivers and lakes.

Besides, he and Tully point out, the prosecutor’s job is not to find a solution, it’s to point out the problem and assign guilt. “If you broke into my house and stole my jewellery, and the cops take you to court, they don’t have to explain to the judge how to get you to stop stealing. That’s not their responsibility,” Tully told me last year.

Up the Humber River near Old Mill subway station, we encounter King’s Mill Park, a recent Waterkeeper success story. It’s a small, grassy marina where families barbeque and assorted people come to fish. It’s also the site of a former dump. In 2001, Mattson found that ammonia and PCBs were leaking into the river in outrageous quantities. He took samples and submitted a brief to the Ministry of the Environment. Originally, they put in a rock bed to help filter the leachate, but as Mattson says, “yellow liquid just kept pouring out and the rocks turned orange.” Finally, last year, the site was cleaned. Good thing, too, as we observe two fishermen casting lines nearby.

Still, Mattson isn’t ready to declare victory. “There are hundreds of former dumps in the city. It took me two years to get that one cleaned up. Do I have to go to each one and take samples before the city will do something about it?”

Originally published July 3, 2004 in Eye Weekly