September 7, 2018
Robert Everett-Green, The Globe and Mail
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, using guidelines from the Department of Heritage, was “unreasonable,” and too lax to reflect the text and purpose of the Cultural Property Export and Import Act of 1977.
Heritage immediately revised its guidelines for the CPERB, which it must apply to applications both for export and for donation tax credits. Applicants now need to show a closer connection to Canadian heritage, although an approved artwork can still be of foreign origin.
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, the CPERB’s decisions can be strikingly inconsistent. As Leah Sandals pointed out in her recent blog post for Canadian Art, the board refused export permission for the relatively minor Caillebotte, which had not been shown in public, but allowed it for 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.”