Fed­erAl Court rewrites how we look At Art

PAINT­ING’S CON­NEC­TION TO CANADA SLIM

Ottawa Citizen - - FRONT PAGE - Adrian Humphreys

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.”

Gus­tave Caille­botte’s Iris bleus, jardin du Pe­tit Gen­nevil­liers, oil on can­vas 1892.

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