Why tent encampments, like music festivals, may not be legal at Beacon Hill Park

For the last two weeks, an online fundraiser benefiting the non-profit Friends of Beacon Hill Park has been collecting money intended to sue the City of Victoria and force them into evicting the park’s growing homeless presence.

If it were any other park, the effort would likely be doomed to failure. But what many Victorians may not realize is that Beacon Hill Park’s use is governed by a strict trust first set down more than 100 years ago. And it’s the provisions of this trust that the Friends of Beacon Hill Park think they can use to force the city’s hand in court.

Six months ago, we asked Sidewalking Victoria’s Thomas Guerrero to look into the unique legal foundations of Beacon Hill. At the time, we were simply trying to figure out why the park is curiously devoid of commercial activity. But now, the same 19th century measures that banish hot dog stands and music festivals from Beacon Hill Park may soon be heard in court in an attempt to banish its growing tent encampments.

Part English country garden, part wild nature, Beacon Hill Park is ruled by what might be the most convoluted set of legal principles a piece of land could have.

The land, like so much in Victoria, was originally owned by the Hudson's Bay Company. In the 1850s, Sir James Douglas, then the Chief Factor for the Company and also the Governor of the new Colony of Vancouver Island, set aside the land as a future city park. Due to this, the land was mostly spared from development despite the massive growth of Victoria over the next few decades, although some of its edges became developed into parts of Fairfield.

In the 1880s, the now-province of British Columbia ceded the land to the City of Victoria, but did so under conditions. Among other things, the 1882 Beacon Hill Park Trust mandated that the land needed to be maintained “for the use, recreation and enjoyment of the public under the provisions of the Public Parks Act 1876.”

The gist was that the City of Victoria, in accepting the park in trust, swore to maintain and preserve the park solely for the use, recreation and enjoyment of Victorians. Over the coming decades, Victoria would discover just how strict that requirement was.

Within less than two years, the City thought that it could build an Agricultural Exhibition Hall near the northeast end of the park, where the softball fields are today. Almost immediately during its construction, an injunction was filed on the basis that because the hall charged admission, its existence was contrary to the trust.

Chief Justice Matthew Begbie (Colonial BC’s so-called "Hanging Judge") reviewed the case and came down squarely against the city and those behind the exhibition hall. Despite the hall being nearly complete, it needed to be demolished.

The Exhibition Hall case remains key to the present-day operation of the park because the Begbie decision went further than the original trust in its interpretation of allowable use. In particular, the decision stated that the park wasn’t “for general purposes of profit, or utility, however great the prospect of these may be.” Begbie’s decision was not completely restrictive though, as it specifically maintained allowances for cricket, lawn bowling, and horse racing.

In the years following the Begbie decision there were many tests of these restrictions, with most of them failing. When a grandstand was considered in 1899, for instance, it was quickly halted because paying for a seat would have been against the trust. The Children’s Petting Zoo was allowed to take up residence only if it charged admission by donation. And anything even remotely commercial, from fairs to ice cream stands, was strictly forbidden.

The result was that Victoria virtually stood alone among Canadian cities in having its major urban park kept almost completely scrubbed of events. Montreal’s Mount Royal, Toronto’s Hyde Park, and Vancouver’s Stanley Park can all have music festivals and art shows and farmer’s markets, but not in Victoria.

As the new millenium edged closer one of the only exceptions to this rule were charity fundraisers. Large events like the Run for the Cure or the Times Colonist 10K would centre their festivities around Beacon Hill Park replete with large sponsorship signs, donation buckets, and even t-shirt and button sales.

Then in 1998, a non-profit proposed a Folks Roots Festival for the park, with big names like Neil Young to be held the following year. This time, a newly founded group called the Friends of Beacon Hill Park led a campaign to have the festival nixed. This city then decided to settle the controversy by seeking a legal opinion. It did not go well for the Folk Root Festival. This time Justice R.D. Wilson, with significant reference to the Begbie decision, said the planned concert was not in compliance with the trust.

This decision went even further than the Begbie decision in concluding that the ban on profit included any profit that a company may make through the sponsorship of charities. Over the next five years all sponsorship of events thus evaporated, banishing both the Run for the Cure and the TC 10k. Luminara, a large lantern festival made a valiant attempt over multiple years to try and succeed in the absence of any sponsorship or advertising in the park, however it ultimately succumbed after limping along for 10 years. Currently no sponsored events or really anything that can be considered to be related to commerce is held within the boundaries of the park.  If a musician plays an outdoor concert in the park’s gazebo, they can be ticketed if they try to sell CDs out of their guitar case.

I spoke to Roy Fletcher, the president of the Friends of Beacon Hill Park, in February. He quoted a long time park supervisor, Herb Warren, as saying, “If it hadn’t been for the exact wording of the trust, Beacon Hill Park as we know it today would be gone.” I asked him specifically what he believed that the trust and his society had prevented, and Fletcher was clear: “Well it would be worse than Hastings (referring to Hastings Park in Vancouver, the site of the PNE), oh definitely there would be a hotel and a casino here.” He added that most of the members “are definitely against commercialization.”

This is a view that has its opponents now as it did in the 1890s. Former City Councillor Chris Coleman told The Capital that he admired the passion that the Friends have for the park but that they were not necessarily keeping up with the times. Coleman referenced a section of the Wilson decision that stated “it would be lawful for the trustee to fence the entire asset, charge a fee for admission, and not be in violation of its trust duty to permit entry.”

Justice Wilson also included in his decision that if Victoria wanted relief from the “suffocating fetters of a past generation,” it could always just try to have the trust terminated.

So what would happen if the trust were to end? Hastings Park is an extreme example. After it was freed from the protections of a similar trust, all but 25% has been developed into parking lots, a casino, and an amusement park, among other structures.

However, the same fate didn’t befall Vancouver's other major park, Stanley Park. There, they have a balance that allows commercial activities such as Theatre Under the Stars, The Second Beach Pool, restaurants like Stanley’s Bar and Grill and of course the humble roasted chestnut cart; but you also have exactly what Justice Wilson quotes in his decision about Beacon Hill Park, “spectacular beauty.”

Notably, other parks in Victoria are not governed by a trust and seem to remain parks with little or no commercial activities. Some, as Chris Coleman pointed out, even have significant commercial activities, like Willows Beach in Oak Bay. Willows Beach is home to a non-profit tea room and the Oak Bay Tea Party. The mere existence of these two things has not led to the destruction of that park. Fletcher says that “Beacon Hill is different, it is right next to downtown,” with all the attendant temptations to repurpose it for non-park means.