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The Canadian Chill: Knowing the uncertainties of trading cultural objects

Posted on 19 November 2018 by Margherita Barbagallo

The Canadian Chill: Knowing the uncertainties of trading cultural objects

Across the pond, Canada has been in a heated debate around its export regulations and how it assesses objects of national importance. The debate is one of significance, with lessons to be learned when considering the UK’s own treatment of cultural objects.

The trigger for the controversy involved the National Gallery of Canada’s deaccessioning of a Marc Chagall painting, The Eiffel Tower (1929), which was set to be auctioned at Christie’s New York with an estimate of US $6 – $9 million in order to raise funds to purchase Jacques-Louis David’s Saint Jerome Hears the Trumpet of the Last Judgment (1779) that was being sold by a church in Quebec. Recent press reports have stated that following fervent protestations by the public over the potential loss of the Chagall, the painting was pulled from the sale and will now remain in the National Gallery. 

The public outcry was two-fold, (1) the public felt misled by the National Gallery’s lack of transparency around the transaction and (2) they also felt the Chagall should have been denied an export license from the outset as an object of outstanding significance and national importance.

Trustees and Transparency

In Canada, similar to the UK, trustees of national museums are ministerial appointments, which in theory ensure public accountability. The National Gallery has a board of trustees that makes the final decision on deaccessioning objects in its collection with recommendations from the board’s Acquisitions Committee. While the National Gallery’s disposition policy states that “attention will be given to transparency throughout the process” the Chagall debacle has challenged how transparent the process truly is. Press reports have suggested the need for stronger disposition policies that clarify how transparency will actually be achieved in regards to public engagement as well as greater clarity in terms of the roles and responsibilities of advisors to acquisition committees.

Export License

There have also been reported concerns regarding how the Chagall was approved for an export license in the first instance.

In Canada, when an object requires an export license, an application is submitted to the Canada Border Services Agency, who will obtain an opinion from a museum curator on whether the object is of outstanding significance and national importance. If it is, the application is referred to the Canadian Cultural Property Export Review Board (CCPERB). If the CCPERB denies the export license, there is a six-month delay period during which time Canadian public institutions may put forward an offer to purchase the object.

By comparison, in the UK, the Arts Council England (ACE) is the regulating body that decides whether an export license should be granted. If the ACE finds that the object intended for export is a national treasure (for which there are specific criteria), the export license is suspended for a prescribed period of time to give UK buyers an opportunity to purchase the work and keep it in the country. If sufficient money cannot be raised to purchase the object, the export license will be granted.

According to The Globe and Mail, in the case of the Chagall, the initial application was cleared by the Art Gallery of Ontario, so the matter never went to the CCPERB for an official review. The reasons for the approval are not made publicly available. It was further reported that prior to the anticipated auction, the CCPERB had voiced its concern to the heritage minister regarding the decision to grant the export license.

The export license approval has shed light on the ambiguous nature of the Canadian criteria and what exactly constitutes outstanding significance and national importance. At the time, there was also no judicial interpretation to provide any guidance.

That was the case until this June, which marked the first occasion whereby the Canadian courts engaged with the issue of cultural property export rules. The case involved a Gustave Caillebotte painting entitled Iris bleus, jardin du Petit Gennevilliers (1892), which was sold by the Canadian auction house Heffel’s to a London gallery in 2016. Following the sale, Heffel’s sought an export license, which was denied, and it subsequently appealed to the courts. The Canadian Federal Court ruled that the CCPERB’s decision to block the export of the Caillebotte was unreasonable and must be reconsidered. Justice Michael Manson held that the test for national importance was not meant to be applied too broadly, otherwise it would infringe unfairly on property rights. In his view, “there must be a connection with Canadian heritage that is more direct than the fact that Canada is multicultural and Canadians may wish to study the traditions of any one of the many countries from which their ancestors may have come.” The government is currently appealing the decision.

Ultimately, the Canadian debate has highlighted the global difficulties inherent with balancing the protection of cultural heritage versus the rights of private owners within the international art market. It also provides a cautionary tale for public institutions in relation to what duties and responsibilities they may owe for works of potential national importance.

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