FederAl Court rewrites how we look At Art
PAINTING’S CONNECTION TO CANADA SLIM
The Federal Court deems it time for Canada to grow up culturally and stop considering all old, pricey paintings as culturally significant and of such “national importance” they cannot be sold abroad.
An oil on canvas of blue flowers by a French impressionist that was sold to a commercial gallery in London, England — and then blocked from leaving Canada — may soon be free to leave after a judge ruled that just because it is old (painted in 1892) and valuable (it sold for $678,500) it doesn’t deserve aggressive protection because it has nothing to do with Canada other than it being here.
The decision reorients the prevailing fervent embrace of what constitutes important cultural property in Canada.
“There was no reasonable basis for the board to have concluded that the painting was of such a degree of national importance that its loss to Canada would significantly diminish the national heritage. The artist and subject matter were not Canadian and the painting has no connection to the Canadian public,” Federal Court Judge Michael Manson wrote in his decision released on Tuesday.
“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 sale of Iris bleus, jardin du Petit Gennevilliers by Gustave Caillebotte went almost unnoticed at the time.
It was overshadowed in dramatic fashion — Lawren Harris’s Mountain Forms sold at the same 2016 Toronto auction for a new Canadian record of $11,210,000.
Heffel Fine Art Auction House was required to apply for an export permit in order to ship the painting to the successful bidder in England. The threshold for a painting needing an export permit is $30,000.
Before issuing a permit, the Canadian Cultural Property Export Review Board hires an expert examiner to assess whether a work is of “outstanding significance” and “national importance.” If it is, a permit is denied, as it was with Iris bleus.
The gallery appealed the board’s refusal to the Federal Court of Canada.
Lawyers for the gallery argued the cultural property board paints with too broad a brush, deeming almost anything of value as too important to export, making the purpose of the act — protecting works of true cultural significance to Canada — meaningless.
The government argued a valuable item that has been in Canada a long time, regardless of other connections to Canada, can make it important enough to our national heritage. The government said Canada’s diverse population should have access to globally diverse works and losing the painting would “significantly diminish the national heritage.” Government lawyers called on the court to leave it to the art experts.
Manson deemed the board’s interpretation of “national importance” unreasonable. The significance of a work, Manson ruled, must be “particular to Canada and Canadians” and not just a general appreciation for the quality or value of a piece.
Most of the specific legislative criteria for refusing an export permit are distinctly Canadian. The law specifies works made in Canada, made by someone from Canada, or of content closely tied to Canadian history or a Canadian theme have priority.
The legislative discussion when the act was passed in 1976 backs up Manson’s approach. The debate focused on protecting Canada’s “national treasures” and “preserving Canadian heritage.”
James Hugh Faulkner, secretary of state at the time, emphasized that export restrictions must be sensitive to property rights and freedom of trade and only applied to objects “of the first order of importance.”
In the case of Iris bleus, its Canadian connection is thin. It was bought into a private collection in Canada in 1960 and was never publicly exhibited here, court heard. There is no evidence Canadian artists were ever in contact with Caillebotte and the painting had no influence on Canadian impressionist artists or the public.
Manson ordered the board to get back to basics with its criteria and to give Iris bleus a new assessment.
David Heffel of the auction house that sold the painting said he is pleased with the court’s ruling.
“We look forward to the review board directing that an export permit for the painting be issued following a rehearing.”