When you take on all of Lake Ontario as your client, you don’t do it for the money. In fact, there’s a lot of work to check on who, exactly, is doing your client harm. that’s why environmental lawyer Mark Mattson has taken to the lake on the yacht Angus Bruce and now patrols the shore to punish polluters.

It seems a very pleasant way for a lawyer to go after new business ? sail around Lake Ontario on a seven-metre yacht, keeping an eye out starboard and port for potentially litigable accidents ? kind of like a waterborne ambulance-chaser. But for environmental lawyer Mark Mattson, his summertime cruise for cases is hardly lucrative. As the Lake Ontario Keeper, he represents the lake, and the lake has little in the way of tangible assets. It?s liquid, but has no liquidity.

And the cases he goes trolling for are a little more complicated than your standard slip-and-fall or car accident, plus they?re a lot more expensive to litigate. Try arsenic contamination. Or PCBs. Or radioactive leaks.

Of course, mattson’s not in it for the money, and his early days on the lake helped form his volunteer ethos concerning the ? waterbody. ?I think growing up and spending all my summers on Wolfe Island (near Kingston, Ont.) and spending all my time on the water made me appreciate the importance of having uncontaminated land and water,? says Mattson. ?Plus, my early association with area fishers and hunters and seeing the importance they place on eating the fish, ducks and geese and the role it plays for their families and cultural life makes me sympathetic to their concerns.?

But he hasn?t quit his day job. He still maintains a more remunerative practice doing a little criminal work, Ontario Energy Board hearings and the like, to finance his forays on the lake and to keep himself fed.

But since joining up with Robert Kennedy Jr.?s environmental group, the Waterkeeper Alliance, becoming the group?s 67th keeper (and the only one responsible for an entire Great Lake), he?s been devoting a full six months of the year to Lake Ontario, pro bono.

The Waterkeeper Alliance?s roots go back to the 1960s when a group of fishermen, disgusted with the fetid condition of the Hudson River in New York State, began investigating and suing industrial and municipal polluters along the river?s shores.

By 1998, they had filed over 150 successful legal actions against Hudson River polluters. Their work was successful and it?s now one of the cleanest rivers along the North Atlantic. The alliance has since grown to 70 keepers acting as advocates on behalf of water bodies throughout North America.

mattson’s own environmental advocacy roots go back to his 1997 co-founding of the Environmental Bureau of Investigation (EBI), a citizens? group with a similar mandate to Lake Ontario Keeper, though the group?s activities aren’t limited to Lake Ontario. Living up to its motto: They Pollute, We Prosecute, the EBI has a two-for-three record for successful prosecutions, as well as four clean-up orders.

Its last prosecution, Lukasik v. Hamilton (City of), launched November 1999 (and ending with a guilty plea in September 2000), saw the City of Hamilton fined $450,000 for dumping PCB and ammonia leachate into the city?s Red Hill creek, in violation of both the federal Fisheries Act and Ontario Water Resources Act. The award actually paid for the Lake Ontario Keeper patrol boat ? the Angus Bruce.

The Fisheries Act has a bounty provision in which private citizens may lay charges against anyone that engages in harmful alteration, disruption or destruction of fish habitat (see s. 35(1). Under s. 62(1) of the Fishery (General) Regulations, “the payment of the proceeds of any penalty imposed arising from a conviction for the offence” is split 50-50 between the citizen and the minister.

In Lukasik, the prosecution was brought forward by Lynda Lukasik, a local environmental activist, with legal and investigative help from both the EBI and the Sierra Legal Defence Fund. Lukasik promptly handed over $22,000 to Mattson to buy the Angus Bruce ? a 6.7 metre Medeiros Limestone lake boat. The patrol boat was commissioned into service on July 6, 2001.

I?m a full-time advocate for the lake,” says Mattson, explaining his role as Lake Ontario Keeper. “I now see the lake as my client as opposed to an individual area or person, and I represent the issues that affect the lake, like pollution, and any other activities that might limit the ability of people who are using the lake to enjoy it.

“So, as a lakekeeper, my job is finding out what the problems are and going out and experiencing it myself. I?m a full-time advocate, full-time investigator and full-time counselor. I guess I?m also part-scientist and part-media relations person.”

Because the Lake Ontario Keeper program is a volunteer organization which relies on donors for funding, it has to be picky about its battles. In fact litigation is a last resort. Mattson prefers the threat of court action, coupled with the idea that there are people out there watching for non-compliance, for deterring polluters.

“If there is this sort of uncontrollable investigator, someone who can come at any time and do an investigation on your site, then there is a risk that someone will investigate you and bring it forward,” says Mattson.

“So with this deterrence factor, people may be going to their lawyers, or lawyers going to them and saying ‘look, the Fisheries Act is alive and well, or the Ontario Water Resources Act is alive and well, and there is someone out there watching. You need to be cognizant of that and you need to ensure that you?re not breaching these laws so that you find yourself in court one day.’ That, I think, is the most important part of our work. We?re really trying to reestablish environmental law as a real threat.”

A regular tactic for the Lake Ontario Keeper is a tactic that’s similar to the British tabloids? ?name and shame? policy for pedophiles. Mattson and his crew will find a polluted site, take samples, get the lab work done, establish that there is indeed
pollution threatening the lake, then write up a brief and present it to the Ministry of Environment or Environment Canada ? with copies to all interested news media.

Mattson used this to great effect this summer when the group released its findings on an old nuclear waste management facility at Port Granby near Port Hope, Ont. (see Sidebar: ?A Day on the Angus Bruce?). The dump, established by one-time Crown corporation Eldorado Nuclear Limited (and now managed by Cameco Corp.), is allegedly leaking arsenic, uranium, radium and cadmium into Lake Ontario, according to mattson’s report, and could be in breach of the Fisheries Act. (It may be in breach of the Migratory Birds Act as well, which is why Mattson often insists on taking pictures of geese and ducks paddling and feeding in the effluent.)

Within a day of the report?s release in late August, the story went national, with headlines screaming ?Lake Ontario nuclear waste shocker? ? Toronto Sun, and ?Poison in the lake? ? Port Hope Evening Guide, prompting a promise to investigate
from Environment Canada and a response from Cameco.

While Cameco insists its effluent is well within regulatory guidelines, Rita Mirwald, the company?s senior vice-president, does acknowledge that the site is in need of remediation. ?We get monthly reports from a third party which continually monitors the stability of the bluffs, and they assure us that there is no danger right now,? she says. Likewise, the ?seeps? [leaks] are continually monitored, ?and should also be remediated, but the volumes of discharge are extremely low.?

Mirwald is quick to add that Natural Resources Canada has promised $260 million to remediate Port Granby (and two other nearby sites).

Another weapon in mattson’s environmental arsenal is public education. By working with concerned citizens and groups, and educating them in the basics of environmental investigation, Mattson adds to the number of eyes he has looking for trouble on the lake.

His group has self-published a book, The Citizen?s Guide to Environmental Investigation and Private Prosecution, which outlines what the amateur investigator can do from the moment pollution discovered, through to collecting evidence, using lab results, making formal complaints, giving media interviews and, finally, bringing on a private prosecution.

Apart from his Wolfe-Island-inspired love of Lake Ontario, mattson’s early legal career was fairly removed from environmental practice. He graduated from the University of Windsor Law School in 1988, articled at Osler, Hoskin Harcourt and then joined his brother Harold?s criminal practice in Kitchener, Ont. for a few years before starting his own practice with friend and mentor Doug Chapman in Kingston.

After toiling in the criminal courts for a couple of years, where he honed his courtroom style, (?criminal lawyers make the best litigators because they?re on their feet practising every day, not like corporate lawyers who might make it to trial a month out of a year?) he happened upon environmental law after helping Chapman, a one-time Ministry of the Environment prosecutor (now with the Sierra Legal Defense Fund) with some environmental cases.

He cut his teeth in environmental practice with a trial pitting Kingston activist Janet Fletcher (co-founder of the Environmental Bureau of Investigation) against the City of Kingston. Fletcher launched a private prosecution, with legal help from Mattson and the Sierra Legal Defense Fund, against the city, alleging that a former landfill managed by the city was leaching toxic contaminants into the Cataraqui River.

The case was significant because it was the first time a private citizen had successfully used their private prosecution rights.

The 25-day trial was vigourously contested by the city?s lawyers who initially tried to have the prosecution thrown out as an abuse of process. Defence lawyer Peter Doody (now with Ottawa?s Borden Ladner Gervais LLP), argued that the private prosecution provision gave the prosecutor a stake in the outcome, but Justice of the Peace John Bell rejected the argument because the regulation specifically allows for fine-splitting.

After six weeks, JP Bell convicted the city of dumping ?deleterious substances? into fish habitat and later fined it $120,000.

The city is appealing the decision and the case will be heard this month (November).

After practising both criminal and environmental law, Mattson had something of a jaded epiphany: ?There was a point,? explains Mattson, ?a crossroads in my defence practice and assistance in environmental practice, where I saw a real distinction between the way the police and government were taking a hard-on-crime stance with harsher penalties, minimum sentences and almost mandatory prosecution, taking away a lot of the discretion from prosecutors in terms of whether not to go ahead with charges.

?This was versus environmental crime where there was a real push towards dealing with the offences outside the courts, a more conciliatory approach where you share information and work towards solutions to the problems as opposed to laying charges and going to court.

?I can only speculate as to why that was occurring, but I saw that it was happening ? which was an important part for me. I think there was a real push on, on behalf of government and business, to have more public involvement and share some of the responsibility for some of these problems as opposed to the parties who should be held accountable for pollution.

?It was a push to share the blame and treat them as less than criminal ? almost treat it as a shared social problem that needed to be treated through public involvement. The comparison would be bringing in people who were defrauding welfare and talking to them about their problems and seeing if you couldn’t work out a solution over the next couple of years where they would no longer need welfare, look at their history, and deal with it as a social problem.

?But for corporations, there were efforts being made to bend over backwards to try and avoid the harsher consequences of taking them to court. Certainly it was happening and continues to happen and you can see it in terms of the levels of prosecutions ? the way they dropped in the nineties.?

So, armed with his legal training and the scientific knowledge he?s picked up on the way, mattson’s been on the prowl for pollution this summer. And the work hasn?t end since the Angus Bruce has been retired for the winter. ?there’s still lots of work to do on land. We?ve identified some places during our tour over the summer that require further investigation on land,? he explains. ?We?ll have to return, take some samples for analysis and write up the briefs.?

He also has to gauge the willingness of the regulators to take on the cases once he?s done the leg work. If they don’t, he?s got some tough choices.

?If, as existed in 1996 when we did the Kingston file when we were told quite explicitly by the investigators, ?look, we may not be able to move on this, we may not have the political backing to do our own investigation and lay charges,? and if we believe we should go on our own, then we?ll do that,? he says. But ?it?s a huge time commitment. We?re talking years.? It?s also hugely expensive. ?You need money for sampling, experts, but if push comes to shove then we?ll have to do it.?

By his own admission, it?s unlikely his forays to Kingston, Belleville, Port Hope, Toronto, Hamilton and St. Catharines will end with our hero arguing on behalf of the lake in court.

But be assured the briefs he?ll have compiled against the negligent around the lake will have violators and their lawyers taking notice.

Duff McCutcheon is an editor at this magazine.

A trip with Mattson aboard the Angus Bruce along Lake Ontario?s north shore is a veritable toxic tour. During a late summer trip to Port Hope to investigate the Port Granby nuclear waste dump, the boat doesn?t leave Toronto harbour before mattson’s
already pointing out potential abuses.

?Look over there,? he says, squinting towards piles of salt lined up near the edge of a pier just north of The Docks entertainment complex. ?You can see the salt is seeping into the water, I can’t believe they?re getting away with that.?

And five minutes later, as the vessel noses its way east, out into open water, he points a finger towards the Leslie Spit where dump trucks are lined up to spill loads of construction waste ? fill and broken concrete ? into the water.

It?s a local practice that’s been going on for years and Mattson doesn?t think much of it. ?They [the city] recently started keeping a Geiger counter at the site because it turned out there was radioactive material being dumped.?

Fellow Angus Bruce crew member and mattson’s cousin, Eric Mattson, jumps onto the deck and snaps a few shots of the trucks with a digital camera to document the dumping. Eric, a 29-year-old philosophy grad has been a full-time Lake Ontario Keeper volunteer since the group started last February.

As the boat slowly makes its way through the Lake Ontario chop to Port Hope (about an hour east of Toronto on Highway 401, but roughly two-and-a-half hours by boat), Mark and Eric point out other potentially toxic spots along the route.

there’s the ancient Pickering nuclear plant, an outdated facility which will eventually have to be pulled down and disposed of, ?but it?s not clear how or where they plan to store the thousands of tonnes of dismantled material.?

there’s a big mound of something, ?most likely an old landfill,? says Mattson, with a pipe gushing yellowish water running underneath and into the lake (mattson’s tempted to take samples, but opts for pictures of geese frolicking in the suspect water instead ? he says he?ll return later for samples.)

And further along, about half-a-kilometre from shore, a trail of foamy brown sludge which floats ominously along the current.

?It?s probably sewage,? says Eric. Again, no samples are taken, but Eric documents the suspected shit trail with the camera.

Finally, the Angus Bruce puts in at Port Hope where Mark and Eric rendezvous with other Lake Ontario Keeper volunteers who?ve made the trip by car: Krystyn Tully, a young Ryerson University Radio and Television Arts grad who acts as the group?s program director (she also produces educational radio shows for broadcast to Third World farmers); and Vyacheslav Magmedov, a Ukranian political refugee with a Ph.D. in environmental engineering who?s volunteering his talents (he?s worked all over the world on remediation projects for the past 20 years) while awaiting his refugee hearing.

They?re also joined by Norm Rubin, the director of nuclear research with Energy Probe, a like-minded organization (they share office space on toronto’s Brunswick Avenue) dedicated to resource conservation, economic efficiency, and effective utility regulation. Rubin?s along on this particular trip because the group is going out to the Port Granby nuclear waste dump a few kilometres out of town to check out suspected low-level radioactive ?seeps? leaking into the lake, and they need his nuclear expertise.

The 300,000-cubic-metre dump was established by one-time Crown corporation Eldorado Nuclear Limited back in the 1940s (it supposedly holds waste from the Manhattan Project) to handle waste from the uranium refinery in Port Hope. It was ordered closed in 1988 and is now managed by Cameco Corp.

About 80 percent of the groundwater leaching through the dump is treated in a series of ponds around the site before flowing into the lake, explains Rubin. However, the remaining 20 percent ? the ?fugitive? groundwater ? escapes untreated through cracks or ?seeps? into Lake Ontario. Indeed, a quick Geiger counter check on rocks and soil at the base of the cliff registers low-level readings of radioactivity.

Another concern is the fact that the south side of the dump is perched behind some cliffs ? cliffs which have been eroding in the intervening decades and which threaten to collapse and spill the dump?s contents into the lake. Cameco has shored up parts of the precipice with rock, but some sections look perilously close to caving in.

After taking some samples from pools of water at the base of the cliff, and taking a few pictures of the crumbling cliff walls, the group heads back to Port Hope where Mattson is scheduled to meet with a local citizen?s group.

The rest retire to a pizzeria where Eric takes readings of everyone?s shoes with the Geiger counter. They all register low-level radiation. But Eric reassures everyone that the dust they?ve been trudging through ? and possibly inhaling ? at the Port Granby site (it?s been very dry lately) poses a far greater risk of exposure than irradiated footwear.

Later, Mattson returns from his meeting with the locals looking tired. The residents he met with, he explains, are frustrated and worried that their town will forever be held in regulatory limbo ? that their grievances will be met with promises of further remediation studies. ?I guess my job today was to buoy their spirits,? he says. He couldn’t promise anything, but hopes they find some comfort knowing someone?s on their side.

And, under darkening skies, they board the Angus Bruce for the return trip to Toronto. On the way back, they?re forced to race a thunderstorm for the nearest port ? Newcastle ? where they spend some time checking out environmental conditions around the marina before bunking down for a mosquito-plagued night.