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Alexander Herman is assistant director of the Institute of Art and Law, an organization based in Britain.

The National Gallery of Canada’s plan to sell an oil painting by Marc Chagall from its collection, revealed last week, has been met with significant circumspection and disgruntlement. How is it that a public institution – indeed our national art gallery – can sell a work with relative ease, and seemingly little transparency?

Unusually when compared with other countries, the National Gallery is not restricted by legislation from selling pieces from its collection. The only legal limitation is that the proceeds be used to further the collection: so no selling of masterpieces to fix leaky pipes and the like. But otherwise, the governing legislation, the Museums Act of 1990, does nothing to restrict a sale like the one involving the Chagall.

Contrast this with the rules controlling Britain’s National Gallery. Under its governing legislation, the institution is forbidden from selling even an artist’s scribble from its collection. The only way to divest of a work is to transfer it to another British national collection. And consider the legal rules governing the National Gallery of Australia – perhaps more comparable to the Canadian collection – which place significant restrictions on the sale of works from the collection, while mandating special procedures that need to be followed for a work to be sold. These restrictions and procedures have no legal equivalents in Canada.

Of course, the more laissez-faire legislation in Canada does not mean the National Gallery can – or will – sell off items willy-nilly. There will be important ethical considerations taken into account and an internal disposition policy that has to be followed. This policy includes criteria such as whether works are fakes or forgeries, whether they are damaged or deteriorating, or (as is the case here) whether they are being sold to refine or improve the gallery’s collection. But while the policy speaks admirably of “transparency,” it seems that in practice this may be something of an afterthought. Where exactly was the transparency here?

While approval of the Chagall sale was apparently given by the gallery’s board last June, the issue only reached the public eye after the auction house chosen to sell the piece, Christie’s in New York, decided to release some flashy promotional material two weeks ago to plump up the estimated US$6-million to US$9-million sale price. This is what auction houses do, after all. Had the situation been different, one wonders when the public would have found out about the sale – after the fact perhaps?

According to the Gallery, the Chagall, along with several pieces of ancient art, are being sold to acquire a “national treasure,” though the identity of this work was not at first revealed. On Wednesday, it was reported by QMI that it may very well be Saint Jérôme entendant les trompettes du jugement dernier by 18th-century French painter Jacques-Louis David, which has been displayed by the parish of Notre-Dame de Québec since 1922, though this has yet to be confirmed by the gallery. Is the Chagall a worthy sacrifice for such a trade-off? Perhaps, though members of the public should have been informed of the plans and consulted. The Chagall belongs to them after all.

The timing of all this is somewhat startling. Over the past six months, the Berkshire Museum in Massachusetts has been put through the wringer as a result of its attempt to sell a number of pieces from its collection, including two famous Norman Rockwell paintings. The public backlash has been enormous and litigation was brought by a number of representative groups trying to stop the sale. This was only quelled last week by an order from a Massachusetts court, which finally allowed the sale to go through.

If such an outcry was aimed at a private museum, with no obligation of public accountability, just imagine what the reaction might be for a public institution, not to mention the pre-eminent national collection. It seems odd then that the public has had no say in the matter. Maybe the law should be changed to provide for a more transparent process? Or maybe this episode should cause us to reflect on whether certain major works in a national collection (Chagall or not) should be considered too important to ever be sold.