Legally binding

Residents left stunned after Council settles with Picton Terminals

Members of the public were left stunned last Tuesday evening, when Council came out of a closed session and Mayor Steve Ferguson announced that the municipality’s settlement agreement had been accepted by Picton Terminals.

“Everyone knows that the matter of negotiations and discussion with Picton Terminals has been an ongoing process that has engaged the public for a number of years. It has certainly engaged three different councils,” said Ferguson. “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. This is not the news I was either expecting or wanted to deliver, but it is my responsibility to do so.”

The County’s in-house lawyer, Sarah Viau, explained that Council had agreed upon a terms of settlement and directed settlement on that basis.

“At this time, those terms of settlement was a legally-binding commitment made by Council. 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,” she said.

The current dispute began in 2020 when Council unanimously denied Picton Terminals’ rezoning request for an expanded list of permitted uses on its property. Picton Terminals appealed to the Local Planning Appeal Tribunal, but withdrew that appeal in 2021—arguing the municipality didn’t have jurisdiction over the matter. In response, the municipality sought a court ruling to assert its authority by way of an injunction against Picton Terminals.

The injunction sought to restrain Picton Terminals from developing outdoor storage and a facility to load and unload containers. It also looked to block cruise ships from docking at Picton Terminals.

In the spring of 2023, the County and Picton Terminals agreed to engage in discussions that could lead to a negotiated settlement with the “hope to avoid a costly and protracted legal battle”.

At the time, attempts to reach a settlement failed. The County claimed it had “no other course of action but to seek a court ruling” on bulk storage, arguing that shipping containers should not be included in the definition of bulk storage.

Early in July, a split Council decided instead to seek settlement with Picton Terminals. The final agreement will come before Council at its next meeting August 27 in the form of a by law. Only at that time will a copy of the minutes of settlement be available for the public to view.

There were 14 deputations delivered by the public during the meeting.

Wellington resident David MacKinnon believed that passing a bylaw without a very substantial opportunity to discuss its provisions publicly shows a complete lack of transparency. He also had concerns surrounding health impacts.

“My concern is simple. I spent half of my life in healthcare and I believe Picton Terminals in that location is a health hazard, and will be a health hazard in all the years to come,” said McKinnon.

Andrew Janikowski lives on Picton Bay, and takes the stance that Picton Terminals is simply not a port.

“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,” he said. “I would have expected more from Council. Not to involve any people, any community, is so wrong and so undemocratic.”

Ryan Wallach comes from a legal background. He told Council he 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,” he said.

Wallach also told Council he disagreed with the legal advice it had been given.

“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”, he added.

Debra Marshall spoke on behalf of the White Chapel, which is locted at 19 White Chapel Road.

She told Council that for more than 200 years, the White Chapel has been a gathering place for the community.

“It’s important that the municipality engage in discussion with the White Chapel before Council considers any draft settelement— which it has not. It doesn’t bode well for the Cultural Heritage Plan if Council does not do its due dilligence for the White Chapel. There is total disregard to cultural heritage in this community by this council,” she said. “Adverse impacts on the White Chapel property will only increase.”

Visibly upset Picton Bay resident William Beckett threatened Council with class action lawsuits.

“We are well-organized, we are well-financed and we are morally motivated. 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,” he said.

Council was left unable to answer many of the questions and concerns posed by the deputants.

The Times will have updates as they become available.