‘Secret’ agreement settled with Picton Terminals

Shipping containers at Picton Terminals shown in this photo from Terminal – Picton Bay Facebook

By Sharon Harrison
It was a stunned council chambers Tuesday night, a packed one too, when the regular council meeting began with County mayor Steve Ferguson announcing the municipality’s settlement agreement was accepted by Picton Terminals.

“This is not the news I was either expecting or wanted to deliver, but it is my responsibility to do so,” said Ferguson who was opposed to pursuing the settlement, along with five councillors.

Seven councillors voted in favour of pursuing the settlement at the June 25 council meeting (in closed session), namely, councillors Engelsdorfer, Harrison, Braney, Grosso, Pennell and Nieman.

The settlement agreement proposal came about as a result of the County’s lawyers advising council the municipality stood little chance of winning in its effort in the courts to regulate Picton Terminals, along with associated high legal costs that would be incurred.

In a brief statement, Ferguson noted how the matter of negotiations and discussions with Picton Terminals has been an on-going process that has engaged the public for a number of years, including three different councils.

“I know many of you have followed this for a long time, but I speak as the head of council, and as the person responsible to speak on behalf of council on this very difficult matter.”

The County’s attorney, Sarah Viau, spoke briefly, especially in light of more than a dozen deputations scheduled to come that night from members of the public.

“On June 25, 2024, the motion 2024-304, council agreed upon those terms of settlement and directed settlement on that basis,” said Viau. “At that time, those terms of settlement was a legally-binding commitment made by council, said Viau. “Those terms of settlement have been accepted in their entirety without any change, and council now does not have the ability to alter the terms of settlement that were approved on June 25, 2024.”

Viau said the implemented agreement will come before council at its next meeting Aug. 27. Available then will be a copy of the executed minutes of settlement and a bylaw implementing them, as well as information providing more context as to the terms of settlement.

In yet another twist to the evening’s events, councillor Kate MacNaughton requested a return to closed session to discuss the same topic as the evening’s earlier closed session, disclosing little except to say it was time-sensitive, referring to “sober second thought”. In a recorded vote, council voted 7-5 in favour of moving once again into closed session much later in the meeting. But, once again, any details of those discussions were not disclosed.

An angry Ken Stewart said he was a “bit challenged by what the lawyer said that this is a legal- binding agreement”. “What is the meaning of the meeting with Bay of Quinte Mohawks? What is the meaning of Aug. 27 council meeting? Is there still time to save democracy?” he asked.

The 10 deputations, and seven comments from the audience proceeded as planned, with some reading what they had written prior to knowing the latest news, with others changing their script on the fly, a few seemingly a little shaken and at a loss for words.

All 17, many of whom had spoken on previous occasions, were opposed in some form to the further expansion of Picton Terminals business operations and the way it conducts business in the County; and to the impacts to people, property and quality of life, and the disregard for municipal laws, where the public’s unanimous and collective voice was heard loud and clear. The message “You cannot negotiate with a bully” was repeated throughout the public comments.

Andrew Janikowski stated Picton Terminals is not a port by any legal definition.

“It is registered as a private business, registered with Transport Canada as a private marine port, and as such comes under the same regulations as any business operating in the County,” said Janikowski.

William Beckett concurred, saying Picton Terminals is not a port, it is a loading dock.

“Toronto port authority officer said the dock in Picton Bay is a loading dock with loading and unloading privileges subsequent to the land use, storage, municipal zoning, and municipal bylaws, including the noise bylaw,” said Beckett.

He said a port is a large enough waterway to handle high-volume cargo and vessel traffic, saying Picton Bay can hardly handle that.

“Ports have comprehensive infrastructure, warehouses, customs facilities, and if a ship comes in from Belgium, which we know the Doornekamps have ships coming from Belgium. Are you regulating what’s in those containers because the federal government won’t be here?” asked Beckett. “Whose going to be checking those containers when they come in from Belgium?”

Most speakers stated they were shocked and dismayed by the unexpected decision as they attempted to process the new information. Some said they were appalled and disappointed; some were upset and angry by the lack of transparency, as council conducted closed meeting after closed meeting; a series of secret meetings that the public still has no idea what may have transpired. Some indicated they were not surprised by the decision, but many were uneasy about the secretive process.

“Passage of the bylaw without a very substantial opportunity to discuss its provisions publicly would be interpreted by myself and many, many others as a complete lack of transparency,” said David MacKinnon.

Janikowski called the news “quite disturbing”, stating how he is “concerned about the secret agreement” and was “quite disappointed, quite shocked at this lack of a democratic process. I would have expected more from council. Not to involve any people, any community is so wrong and so undemocratic…. We are losing control. We are losing the ability to govern what we want to be if we allow Picton Terminals to get away with breaking the bylaw.”

Some comments spoke to what they felt was inadequate legal advice and due process provided to the County, and how a second legal opinion should be sought.

“Council should re-consider this entire matter and should go right back to ground zero. When this was first received by council, council received false information which should never have come before council because it was factually wrong.”

He said council should rely on the 2018 court decision that did not permit container storage or container traffic at Picton Terminals, “as we think that decision was important and because of it, council should not permit, under any circumstances, container storage or container traffic at Picton Terminals”.

John McFarland said Picton Terminals had been operating outside the law for decades, “by logical extension, companies that engage in illegal activities are criminals”.

He added the on-going operation of the site has to varying degrees, compromised the quality of life for residents of Prince Edward County, and specifically the constituents of Picton Bay.

Concerns from members of the public covered managing the freshwater resource, economic, social and environmental aspects, extending to the contamination of the freshwater bay (a source of drinking water for many), noise and light pollution (including throughout the night), interrupted sleep, health hazards caused by the operations, diminished property values, quality of life, the further deterioration of County Road 49, as well as the free excavation of limestone by Picton Terminals which it sells on with no financial benefit to the County.

One person spoke to the constant noise of the crane (providing sound effects for emphasis), the pounding of machinery, the lights shining at night constantly and accumulating dust. Another asked what happens if the water is contaminated or if there is an oil spill.

Picton Bay resident, and attorney, Ryan Wallach gave an lengthy legal opinion and provided background where he had undertaken extensive research on several elements relating to the matter. He said he too was taken aback, and shocked by the news.

“Shame on you councillors who voted to pursue settlement after just last year saying no. It is a cop-out and it’s not clear why certain councillors, and the County staff seemed supportive of settlement,” said Wallach.

He also disagreed with the legal advice the County’s counsel has provided “because settlement agreements are not binding commitments, especially when they still have to be voted on by the council, and when a court likely has to sign off on them”.

“I encourage you to make the right choice for your constituents and not the choice that will simply further the interests of a private, non-County investor who seeks to turn Picton Terminals into an international container terminal, “ said Wallach. “Picton Terminals appears to be fighting this war, and apparently winning it, with press releases and back-door communications with the council, and presumably its attorneys.”

Jane Lesslie asked council how it proposes to enforce the agreement.

“How many staff are you going to have to hire, and what financial provisions are you making to protect the community?” asked Lesslie.

Wallach added Picton Terminals is not a public port or a federal port and he cites the Transports Canada website.

“Nowhere is there even a list of it being an actual port or harbour, and it even has a list of small craft harbours, but nowhere on the Transport Canada website is Picton Terminals listed at all,” Wallach said.  “Transport Canada does note that there are other non-public ports, but it doesn’t appear to list those anywhere, nor does there appear to be any registry of ports.”

Wallach states how “there is nothing special or unique about Picton Terminals as compared to any other waterfront property owner.

“Under Picton Terminals’ theory of the law of the land, any landowner could claim they are operating a port and are exempt from local zoning restrictions as well as other local and provincial laws because, according to Picton Terminals, neither the County nor any other municipality can regulate the locations of ports,” he added.

While the terms of the agreement are yet to be known by the public and may come with positives surrounding noise for example (speculative at this point), Janikowski said, “it comes at the price of allowing a private company to continue to claim that they are not subject to our bylaws, and get away with it. It becomes a very hollow victory, and I would even suggest it becomes a significant loss”.

MacKinnon said much depends on the nature of the provisions in the agreement relating to the concerns of residents, if the bylaw is passed by council in August.

“If they [the provisions] are weak, then some citizens may well launch actions against the County once the bylaw passes,” said MacKinnon. “A class action against the County from property owners with diminished property values because of behaviour of the type displayed by Picton Terminals over recent years would not be out of the question.”

“We are well-organized, we are well-financed and we are morally motivated,” added Beckett. “We will be doing everything legally possible with our funds to make sure this wrong, even if it’s not righted, it will be exposed for a failure of government.”

Lightening the sombre and angry mood just a little, Picton Bay resident Shelley McFarland came up with a challenge for council to book a few nights at Merland Park. “so you can hear, you can feel, so you can see the dust, you can breathe the crap in the air.

“I challenge you,” she said, “you don’t know until you’ve lived it, and it’s terrible. I’ve had lung issues and I am scared.”

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