A chorus and a shovel

Council has found itself in a deep, dark hole. It should stop digging. I imagine one day it will figure out the only way out is up, but not yet. Sadly, when that day arrives, and Council finally emerges into the sunlight, there will be no celebration, no exultant crowds, and no parade. Council may wish it had stayed in its hole.

Council last week decided to reject the advice of its legal advisors and to seek a second opinion on the matter of containing Picton Terminals. The municipality has been locked in a legal dispute with the port facility for several years. It started when Council attempted to impose restrictions on the commercial dock. The owner rejected the new terms. It sued and then abandoned its legal action, deciding instead to ignore the municipality’s new rules, figuring the County had over-reached. So the County sued to enforce them.

For the better part of the past year, Shire Hall’s legal advisors worked to cobble together a settlement deal with the developer. It didn’t fix everything. But it erected new guardrails. It put some law upon the lawless. The province got involved with its own set of new rules. Some carrots. Some sticks.

None of it satisfied the Picton Bay neighbours. Many of these folks—judging from comments made to Council—simply wish the Doornekamps would go away. They want Council—summoning powers it doesn’t have—just to shut it down.

It isn’t going to happen. It is a fantasy. Even if every County resident and Council wished it were possible—it isn’t. The facility was zoned as a port in 1953. It has rights. The Doornekamps inherited those rights. The municipality cannot extinguish them—not without confiscating the property, and that is not going to happen. It will operate as a port long after the Sturm und Drang subsides.

This column is largely sympathetic to the neighbours’ complaints. Picton Terminals has been a disrespectful operator and a negligent neighbour. It must operate within reasonable constraints.

Serious and enforceable guardrails must be erected to protect the bay, the environment and the surrounding properties. These barriers must be established by three levels of government: the municipality, the province and the feds.

The settlement deal was a start. Now, it has been scuttled. Council, and this community, is in a weaker position.

If ever it gets in front of an adjudicator, the bar will be higher than it was a week ago. The County will have to make its case—and then it will have to explain why the previous legal advice it received was wrong. It is now part of the record. The opinion—bought and paid for by Council—will be used against it in any future proceeding.

One smart observer suggested to this columnist the goal of the opponents might be to get a better deal. Maybe. But someone must articulate what better means. And soon. The case for how the deal might be improved has not yet been made.

Someday, hopefully soon, the opposition to Picton Terminals will present a workable argument— tangible and realistic improvements to the settlement agreement before them. Stamping feet, pointing to legal this and procedural that may have succeeded in tying Council in knots, but Picton Terminals is watching with delighted amusement. They cannot believe their good fortune.

The plot has been lost in misplaced zeal. It has been jumbled by armchair lawyers. So fixated on what they perceive as legal or enforcement holes, they risk giving the game away—along with many thousands of taxpayer dollars.

Others seem to believe—likely prodded by reckless councillors and observers—that if they make enough noise, it will matter in a court of law. It won’t. It can’t.

The only folks making an argument—an argument that has any reasonable chance of impacting circumstances on the ground—are local grain growers. They support the port facility as an economical and efficient means of moving their goods rather than trucking it to Prescott. That is an argument.

Others, meanwhile, point feverishly to the perceived weaknesses of the settlement agreement while simultaneously urging Council to toss it into the bay. Okay, but then what?

Some want more. More protections. More safeguards. More certainty. I get it. And, maybe a new lawyer will get you these things. Maybe there is a compelling argument—not yet formulated—that will put proper restraints on Picton Terminals. I wish you Godspeed. But maybe they won’t. This, too, will have consequences.
So many seem eager for a final glorious courtroom showdown. They are sublimely confident in the righteousness of their position and unburdened by the financial toll this drama is piling up.

But here is the thing: A court of law is a more rigorous venue—it’s a place where what is written matters more than feelings. Where laws are rooted in precedent. It’s a place where rights are taken seriously.

Should the County fail in this bold confrontation, the folks shouting loudest to reject the settlement deal will surely be the loudest urging Council to restore it. But by then, the deal will be gone. If Picton Terminals prevails, they will set the terms. Just as they have done at every step.

No matter how any of this turns out, there will be no parade.

rick@wellingtontimes.ca