Skip to main content

A federal court ruling that narrowed the grounds for export or donation of a work of art occupied headlines for only a few days in June, but remains an open wound for Canadian museums. Ten museum directors shared their pain last week, in an opinion piece in The Globe that also ran in Le Devoir as an open letter to Heritage Minister Pablo Rodriguez.

The directors wrote of a dark age in which collectors, no longer allowed a generous tax credit for giving their art to public galleries, would send a flood of treasures out of the country. Donations that were already in progress, they said, are stalled while the federal government appeals the court decision.

They urged the Heritage Minister to speed up the appeal, and to reinstate the old system just as it was. They don’t seem to have asked themselves whether the old system was in fact broken, and needs new legislation in order to be fixed.

Federal judge Michael D. Manson found that the Canadian Cultural Property Export Review Board (CPERB) had unfairly blocked the export for sale of a painting by French Impressionist Gustave Caillebotte. He also examined one of the main criteria for the CPERB’S rulings: that the object be “of such a degree of national importance that its loss to Canada would significantly diminish the national heritage.” He ruled that the board’s application of this rule was “unreasonable,” and too lax to reflect the text and purpose of the Cultural Property Export and Import Act of 1977.

The CPERB immediately posted revised guidelines on the Heritage website, to apply both to export request appeals and to applications for donation tax credits.

One irony here is that the Manson ruling never touched on donations to museums, although they bear its greatest effect. The Caillebotte refusal was very rare: In 2015-2016, fewer than 2 per cent of export applications were denied.

The museum directors’ open letter championed the main thing Justice Manson abhorred: the idea that, because Canada is a multicultural society, “national importance” can encompass art made in any of the countries to which Canadians trace their origins. They also wrongly claimed that Canada now permits “the export of all non-Canadian works.”

“National importance” was always a more nebulous quality than the CPERB’s other main criterion: “outstanding significance,” which the act says could mean artistic quality, or close connection with Canada, or pedagogic value.

In any case, as Leah Sandals pointed out in her recent blog post for Canadian Art, interpretation of the Act can be strikingly inconsistent. The Canada Border Services Agency (CBSA), which is also governed by the Act, refused export permission for the relatively minor Caillebotte, which had not been shown in public. Its export was again refused on appeal by the CPERB. But the CBSA allowed exportation of Marc Chagall’s more significant La Tour Eiffel, which had been in the National Gallery of Canada for decades.

The National abandoned its plan to sell the painting at a New York auction in April, in part because of public protest.

The other event that spiked the Chagall sale was Quebec Culture Minister Marie Montpetit’s move to classify the Jacques-Louis David painting the National Gallery had planned to buy with its auction money. She was working under the provincial Cultural Heritage Act, which covers objects in Quebec whose protection, display and study serve “the public interest."

That phrase may offer a path away from the lofty ambiguity of “national importance.” It’s possible to interpret “the public interest” in many ways, but my idea of the public interest certainly includes a flourishing museum culture. Federal legislation linking donation tax-credit standards to the public interest could reopen a way for museums and art galleries to keep growing, while still protecting property rights.

On that count, the Quebec heritage law looks pretty terrible. It allows the minister to block the sale of a protected object to anyone who isn’t a permanent resident of Quebec. She can also prevent it from leaving the province. A Montrealer who owns a protected painting could be barred from taking it to a second home in Whistler, B.C. If Quebec's heritage law is ever tested in federal court, I wouldn’t bet on it emerging intact.

New federal legislation should definitely divide the regimes for export and donations. That would prevent surprises such as the Manson decision.

Editor’s note: Editor's note (Sept. 28, 2018): The Canadian Cultural Property Export Review Board sets its own guidelines for its determinations, and does not receive them from the Department of Canadian Heritage. The CPERB did not hear an appeal for the export of Marc Chagall’s La Tour Eiffel, which was approved by the Canada Border Services Agency. Incorrect information appeared in a previous version of this story.

Interact with The Globe