Picton Terminals settlement bylaw adopted by council; farmers pleased with new grain shipping partnership

By Sharon Harrison
The decision to accept the Picton Terminals settlement agreement finally came at Tuesday evening’s council meeting, with council voting in favour of adopting the minutes of settlement bylaw.

In a recorded 7-6 vote, mayor Steve Ferguson and councillors John Hirsch, Phil St-Jean, Kate MacNaughton, Sam Branderhorst and Phil Prinzen were opposed (Bill Roberts was absent).

The bylaw authorizes the mayor and CAO to execute the minutes of settlement between the County and ABNA Investments Ltd. (operating as Picton Terminals).

In closed session earlier in the meeting, council received the confidential independent legal opinion it sought (which remains confidential as details have not been made public) prepared by external law firm Loopstra Nixon LLP.

The decision to seek further legal advice came after council voted to seek a third-party legal opinion at the Sept. 20 council meeting, see background here:

Council to seek separate legal opinion over Picton Terminals agreement

Councillor Hirsch spoke at length on several points, not least of which was the lack of open public sessions the topic received, and the appropriateness of approving a terms of settlement without the opportunity for public input.

He said he also continues to believe “we would be better served to continue with our superior court request for an injunction, so that the County can determine its own destiny by approving only those operations which we believe are in the interests of the County on the PT site.

“Through this entire process of dealing with settlement, there’s never been a conversation in open session for the public to hear about reasons for and against,” said Hirsch, something he said was “not democratic and not how this council should be known.

“We have all heard significant objections from the public about Picton Terminals’ intention to create a container ship port and to significantly enlarge their operation to incorporate adjacent rural-zoned lands into the operation.”

He also cited the last “where as” clause in the agreement: “Whereas council being in receipt of the minutes of settlement duly executed by ABNA Investments Limited, operating as Picton Terminals, deems it necessary and desirable to direct the execution of the minutes of settlement on behalf of the Corporation of the County of Prince Edward”.

“I would argue that it is not desirable to direct the execution of the minutes of settlement, and by voting no to this proposal bylaw, we could still hopefully stop this process,” he added.

Hirsch provided several reasons for his decision, noting that new information had come to light that council was not aware of June 25, such as information about legal case precedents, the full scope of operations at the site, and a White Chapel heritage church issue (which was never brought to council’s attention before), he said.

“More recently, a very comprehensive letter from Transport Canada confirming what many of us believed all along, that the federal government has no jurisdiction over the operation of the port facility, only a security concern that presently means that Picton Terminals has a licence only as an occasional-use marine facility to bring in up to 10 foreign ships per year.”

He also said the case supporting the County`s request to the minister for an MZO is a “weak one”, and by no means guaranteed to succeed.

Noting the announced grain operation partnership with Parrish and Heimbecker (P&H), Hirsch said, “I continue to believe we would be better served to continue with our superior court request for an injunction, so that the County can determine its own destiny by approving only those operations which we believe are in the interests of the County on the PT site”.

He further noted they are able to proceed without the proposed MZO as it is allowed under the existing legal non-conforming use zoning for the property.

Speaking to quarrying being a huge issue, he said, “We have come to learn that the much-extended permit that they obtained from the ministry of natural resources and forestry was actually not supported by ministry of natural resources forestry staff, and that really needs to be looked into, and that permit terminated”.

Councillor Janice Maynard spoke to the valuable site plan control (if the bylaw is passed by council), but she also asked about the on-going quarrying of rock.

“Will they have to submit a plan for what they plan to do with the property, and cease this years- long endless renovations of the site?” asked Maynard, further asking what strengths the site plan will bring.

CAO Marcia Wallace said the minutes of settlement agreement does not include site plan, because they are not changing site plan bylaw or how it applies.

She said it creates a development agreement which provides a lot of the same powers, and in some cases, more powers than the County would have had under site plan.

“You also need a formal site plan if you are required under the aggregate resources act by the ministry of natural resources to be treated as an aggregate pit,” said Wallace, confirming it would be the provincial government that has to make a decision should they do more quarrying, and whether or not that triggers the aggregate resources act.

Ken Stewart, with the County Conservancy citizen group, commented that the settlement terms are not needed in order to make the P&H deal.

“Picton Terminals was given the right to ship bulk products in the 2018 judgement from the Ontario Superior Court, and that allows them to ship bulk products,” Stewart said. “The P&H deal will go through nicely on that, and if there is a bypass necessary to go through to 49, to make it easier for trucks to go in there, then Picton Terminals can apply through the normal planning process to get it done: you don’t need an MZO to put a road through to 49.”

Local farmer John Thompson spoke to the bylaw and said local farmers are pleased to welcome the construction of the P&H grain terminal at the port, which he said will result in better prices for County farmers, regional farmers, as well as benefits for the agricultural economy.

He said trucking costs to the port will be reduced by $10 a ton, or more, and it will also provide more local capacity for completing a harvest.

“As sometimes happens at harvest, it needs to be paused when local elevator storage is at capacity caused by trucking constraints or other constraints to moving a crop to Prescott, for example,” said Thompson. “The grain terminal will provide local benefits for generations to come and this also has the environmental benefit of reducing tonnage that needs to be trucked to Prescott or Hamilton which causes greenhouse gas emissions and adds to traffic congestion and hazards, whether from an environmental or economic perspective.”

While he understands that P&H can go forward without the bylaw, he said operations should go more smoothly with the terminals settlement in place.

Thompson notes that there is a clause in the agreement that the terminals create a dedicated access to County Road 49 which would be a public benefit, and also a benefit to the grain trucks and wagons which would no longer have to circle around the White Chapel.

“This is one of the benefits to the County for approving the settlement, rather than embarking on the costly, and likely losing, court battle where additional benefits would no longer be on the table.”

Another benefit of two thriving businesses is that the County would now have a strong negotiating position for getting provincial and federal assistance to re-build County Road 49, he said.

“Repeatedly asking for help over a couple of decades has not shown any success, and playing the same plan repeatedly and expecting different results makes little sense: we finally have a strong hand to play,” he said.