In May we wrote about a post exploring some of the history of colonial theft and damage to MEEGAN (aka ‘beaconhill park’). The post was prompted by a NIMBY uproar about people being allowed to shelter 24/7 in the park in COVID times, and related hysteria about temporary sheltering being predicted to cause apocalyptic damage to the park.
MEEGAN is by far the largest park in the municipality so it is a site where relatively large numbers of people have been sheltering, geographically spread out in small clusters. Since May the city of ‘victoria’, which manages the park, has repeatedly and relentlessly squeezed people stuck living at MEEGAN into smaller and smaller areas to preserve the maximum space for…well, everyone except unhoused people. These changes have forced people to relocate multiple times.
The municipal government has also failed to set up basic survival infrastructure at the park, and interfered with community volunteers who after months of government inaction took it upon themselves to raise funds and pay out-of-pocket to set up a community care tent and two shower stalls. Instead of working with the community on this awesome mutual aid initiative, the City turned off the water in the area where the planned shower hookup was to happen, in the process removing campers’ access to handwashing at a site where a portapotty is located — so much for access to basic hygiene. Council also insists that the community care tent, which provides a 24/7 space where people can access survival supplies and support, and a meetup place for housed and unhoused people to build relationship, be dismantled and moved to an area outside the park: i.e., nowhere close to where people are allowed to shelter.
Some of these harmful actions are a reflection of the City’s general approach to unhoused people, not specific to MEEGAN. For example the City has for many years through its Parks Regulation Bylaw set limits on where and when people can shelter, rousting people from parks at 7 AM every day regardless of weather or a person’s health or mobility, and not allowing people to set tents back up till 7 PM (8 PM in the summer). This ban on daytime sheltering was temporarily suspended when COVID started, but Council has been clear that this is temporary and that they hope to reinstate daily rousting in April 2021. Council has also for years been steadily adding more parks to its “no sheltering at any time” list, pushing people farther away from where survival services are located; and in May 2020 and again in September imposed new requirements that drastically limited the size of space people could live in (regardless of family size or other considerations), prohibited use of warming or cooking devices, and set restrictions on spacing between tents and from City-managed infrastructure.
But at MEEGAN the City says there are special considerations based on the way the province gave the land to the municipal government. City staff have repeatedly referenced the Beacon Hill Trust as a rationale for not being able to install a shower trailer near where people are sheltering, and after receiving many letters from people calling for the City to stop threatening to remove the Community Care Tent and showers, mayor Lisa Helps publicly posted: “Beacon Hill Park is governed by the Beacon Hill Trust that dates back to 1882. The Trust dictates the kinds of activities that can happen in the park and the kind that can’t. The Trust has been tested in court a number of times and each time it has been upheld. The Community Care Tent is not the kind of activity or structure that can remain in the park according to the Trust. This is really important and should be of concern to everyone who cares about the right for people to shelter in Beacon Hill Park. If the Community Care Tent is not removed, the City could be found to be in violation of the Trust. Being found in violation of the Trust is serious and could put the park at risk and some important uses that are valued by the community may not be able to continue.” [emphasis in original]
Patronizing tone aside, does a Community Care Tent really put the park at risk?
WHAT does The trust SAY?
From the City’s defensiveness you’d think that the Trust had elaborate restrictions. But the land trust referenced is very short and says very little. And the two court decisions about the Trust also don’t say much about the situation that we are in right now.
As a starting point let’s look at what the Trust says. Note that this is a document reflective of its time and context — which is to say colonial and Christian-supremacist nonsense. Read if you want to know the full language; if you want the TL:DR version, the key line is that the park “shall be maintained and preserved by the said Corporation and their successors for the use recreation and enjoyment of the public”.
PROVINCE OF BRITISH COLUMBIA
Feb. 20th 1882
George A. Walkem
Victoria by the Grace of God of the United Kingdom of Great Britain and Ireland and of the Colonies and Dependencies thereof in Europe Asia Africa America and Australasia Queen Defender of the Faith and so forth.
TO ALL TO WHOM THESE PRESENTS SHALL COME
WHEREAS by Section One of An Act passed in the Session of the Legislative Assembly of British Columbia held in the forty-fourth year of Her Majesty’s reign intitled “An Act to amend the Public Parks Act 1876” it is declared that it shall be lawful for the Lieutenant Governor in Council from time to time to grant and convey any public park or pleasure ground set apart or reserved out of any Crown Lands of the Province for the recreation and enjoyment of the public to the Municipal Council of Corporation of any City or Town within the Province upon trust to maintain and preserve the same for the use recreation and enjoyment of the public and any such Corporation to whom such grant or conveyance shall be made shall have power to hold the lands thereby conveyed upon the trusts and for the purposes aforesaid.
AND WHEREAS the hereditaments and premises hereinaftermore particularly described being the public park or pleasure ground known as Beacon Hill have been set apart and reserved out of the Crown Lands of the Province for the recreation and enjoyment of the public.
AND WHEREAS we have agreed to give and grant the said hereditaments and premises unto the Corporation of the City of Victoria upon and for the trusts intents and purposes herein mentioned.
NOW KNOW YE that We do by these presents for Us and our Heirs and Successors in consideration of the premises and for effectuating the intent and purpose herein mentioned give and grant unto the said Corporation of the City of Victoria their successors and assigns ALL that piece or parcel of land known as Beacon Hill Park situate in the District of Victoria known upon the Official Map of the said District as Section 87 (Eighty-seven) The said piece or parcel of land being delineated and coloured red on the Map or Plan thereof hereunto annexed TO HAVE and TO HOLD the said piece or parcel of land and all and singular the premises hereby granted with their appurtenances unto the said Corporation and their successors to and for the several uses, intents and purposes and upon the several trusts and with under and subject to the several powers provisos agreements and declarations expressed and declared of and concerning the same that is to say UPON TRUST to the express use intent and purpose that the said hereditaments and premises hereby granted shall be maintained and preserved by the said Corporation and their successors for the use recreation and enjoyment of the public under the provisions of the Public Parks Act 1876 and the said Act to amend the Public Parks Act 1876 PROVIDED ALWAYS that nothing herein contained shall be construed as purporting to derogate from the powers of the Lieutenant Governor in Council given under the aforesaid Acts.
IN TESTIMONY WHEREOF We have caused these Our Letters to be made Patent and the Great Seal of Our Province of British Columbia to be Hereunto affixed Witness the Honourable Clement Francis Cornwall Lieutenant Governor of our Province of British Columbia in our City of Victoria, this twenty-first day of February in the year of Our Lord One thousand eight hundred and eight two and in the forty-fifth year of our Reign.
T. R. Humphreys
So, not a special arrangement at all: just a standard colonial garbage arrangement affirming settlers stealing sxʷeŋxʷəŋ (Swenghung) family lands, as part of carving up Lkwungen territory to fit European theories of how to accomplish maximum colonial power. No big reveal, just identification that the Province requires that the City maintain the park for the use, recreation, and enjoyment of the public.
Of course, not everyone has the same ideas about what constitutes use, recreation, and enjoyment; or whose use, recreation, and enjoyment counts and whose is disregarded. The idea of “park” as a highly manicured area carved out of dense settlement infrastructure for leisure purposes reveals a fractured, dissociated relationship with the natural world where ecosystems are turned into fabricated playgrounds for people with enough wealth to have leisure time.
In contrast, Lekwungen relations with MEEGAN have included uses that co-nourished human and non-human beings rather than humans manipulating and harming the land. MEEGAN is a Lekwungen word that means “a place to warm your belly“. It is an important place in kwetlal (camas) food systems that Lkwungen people cultivated and stewarded for thousands of years, a stewardship relationship which continues today.
How do settlers view relationship to this place? We’ll turn to the two Supreme Court of ‘bc’ rulings on this issue.
To be clear: colonial courts are in no way fair, wise, or moral and they have no ethical legitimacy. Their function is to impose the colonizer’s rules and norms on Indigenous territories and peoples, i.e., to facilitate and legitimize settler violence. There is nothing inherently true or sacrosanct about a court ruling just because it’s a court ruling; the history and present of ‘canada’ is chock-a-block with harmful laws and unethical legal precedents that should be contested, overturned, and reined in so we can have some hope of a less violent future. But when settler colonial governments like the municipal government claim the laws they’re under force them to take or not take certain actions, as a first step we can suss out whether it really is the law that’s an impediment (if so, let’s address that) or whether there are other issues at play that require political rather than legal solutions.
Ruling #1: 1884
Debate about what was acceptable under this trust arrangement first went to the Supreme Court of ‘bc’ over a dispute about the City transferring 20 acres to an agricultural organization to build an exhibition hall. Filed as a request for an injunction to stop the construction, in Anderson v. Corporation of the City of Victoria (1884), 1 B.C.R. (Pt. 2) 107 (S.C.) Judge Matthew Begbie* ruled in 1884 (pages 412-417) that the park should be used as a “park or pleasure ground” for recreation and enjoyment, that “use” did not extend to “general purposes of profit, or utility”, and that the exhibition hall was not an acceptable use because it did not constitute public recreational use and enjoyment, but that it was not possible to define what kind of structures should or shouldn’t be built or encouraged because there is grey area on what different people consider recreation (page 417) and what is necessary to maintain the park in decent condition.
The judge mentions as examples that a cricket green, lawn bowling facilities, and horse racing track and stands could be acceptable, and further stated that the park should not in future include a university, sanatorium, barracks for soldiers, “lunatic asylum”, or cemetery (note that prior to colonization there were Lekwungen burial cairns at MEEGAN, that settlers removed) while citing structures that may fall in the British grey area of what is recreation such as an aquarium, conservatory, or library. He explicitly leaves it open for the municipal government to allow work to be done “by public-spirited individuals, at their own expense” as long as title of the land is not transferred.
*Judge Begbie was ‘bc’s first chief justice. He sentenced six Tsilhqot’in Chiefs to death in 1864 to terrorize and threaten all Indigenous people attempting to defend their land. His statue and name have in recent years been removed from multiple public institutions as an acknowledgment of the harm and violence he caused to Indigenous people.
Between rulings: City treatment of MEEGAN
It’s possible to take a narrow view that the 1884 ruling prevents any structures being put up that aren’t specifically to enhance recreation at MEEGAN, and that the Community Care Tent isn’t only about recreation or enjoyment, it’s also about survival. But that’s not how the City has treated the ruling.
For example, even after this ruling the City’s actions at MEEGAN that had nothing to do with recreation included installing a flagpole; cutting trees for firewood; dumping soil and garbage; blasting natural rock outcroppings and setting up a gravel pit; and installing a gunpowder storage facility. Even though military barracks were identified in the 1884 ruling as prohibited, in 1916 a large (400+ person) military camp made of timber was built by the City in the park, including guard houses, mess-houses and a three-tier huge mess hall, sleeping quarters, outbuildings, platforms and barracks — complete with soldiers bathing in the park. After the military camp was dismantled, in 2018 the five acres it had been on were planted — one acre grass and the remainder food crops (oats and vegetables). As recently as 1990 a barn was built for a VicPD police horse. So, recreational connection is clearly not the only basis for City decision-making about MEEGAN.
The military camp mentioned above is worth considering as a reality check on what might happen if the City does something they’re not allowed to do under the terms of the Trust. In this instance it was widely acknowledged that the barracks were not allowed under Begbie’s ruling; the local paper commented on this and suggested that it would be good to dismantle the camp and sell off the timber to recoup some costs. That is what happened, but it took months. The original hope was to restore the grounds for spring planting but this didn’t happen and the last building remained till May 1917 when the City set a deadline for removal.
Sound familiar? An unexpected situation (war) resulted in more emergency capacity needed and the park was temporarily used for this purpose — nothing was permanently damaged, the park remained a park used by multiple groups of people, and no other catastrophic consequences happened.
Ruling #2: 1998
In 1998 the City sought the court’s opinion on whether under the terms of the Trust, the City could agree to an application by a local non-profit organization to temporarily use the park for a three-day folk music festival. The area the festival was in would be fenced off to anyone without a festival pass, and admission charged as well as corporate sponsorships sought to help reduce the price of festival passes. Additionally vendors would sell food and merch.
Justice R. D. Wilson’s 1998 ruling (Victoria (City) v. Capital Regional Festival Society (1998), 62 B.C.L.R. (3d) 134) hinges on Begbie’s 1884 ruling that MEEGAN “was not to be used for general purposes of profit” and the advertising revenue that would come to corporate sponsors of the festival plus the profit of people selling food and goods. This is a completely different situation than a Community Care Tent and showers available to anyone at no cost.
Wilson also pointed out that if the Trust granted in the 1800s was too restrictive to meet modern needs, the City could “move for a termination of the trust, and conveyance of legal and beneficial title to the City. The property then may be administered free of the encumbrances imposed” by the Trust. This is significant as a reminder that the City is not helpless to be bound by the Trust forever, if the Trust isn’t serving the public good there are options for the City to try to negotiate another arrangement.
This became a matter of hot political and public debate in 1999 and 2000 when a City staff member, without Council’s approval, sent a letter to local non-profit organizations telling them that as a result of Wilson’s 1998 ruling, fundraising or recreational events with any corporate advertising would no longer be allowed in the park. Council disagreed and continued to allow advertising at events years after Justice Wilson’s ruling. Council also repeatedly allowed the Cricket Club to sell beer, again with no consequence. During these years of intense debate about commercial activities in the park, many people called for dissolution of the Trust and a new arrangement. In the end Council maintained the status quo, because they believed that the Trust didn’t stop them from doing what they felt was important.
council: stop hiding behind the trust
The Trust is a document written by a settler-colonial government as part of mass settler fraud, deceit, and theft to accomplish expropriation of Lkwungen land. On that basis alone, arguably it keeps things stuck in a dysfunctional dynamic and Council should seek to end the Trust as part of a movement towards decolonization — including return of stolen land, recognition of Indigenous land stewardship expertise, and restoration of Indigenous systems damaged by colonial interference.
If Council won’t go in this direction, then hopefully it will stop making decisions about MEEGAN out of fear and speculative “what-if” mode. Maybe some day NIMBY groups will take the City to court, and maybe at that point a judge will decide the City isn’t allowed to let certain structures stand — or maybe not. If there ends up being a legal order by a ‘bc’ court against certain structures in MEEGAN, at that point the City can talk with people who built those structures to find out what they want to do. In the meantime, preventing people from accessing water outlets or building temporary structures to provide spaces to dry off, connect, support, and build relationship is cruel and unnecessary.
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