Alan Klinkhoff on Cultural Property Export Regulations
“I believe the export controls continue to do much disservice to the interest they were designed to protect."
—Walter H. Klinkhoff, Reminiscences of an Art Dealer, 1994, p. 26
Having been a major and distinguished participant in the art dealing trade in Canada for more than four decades, in 1994 my father, Walter Klinkhoff, wrote the above about the unintended consequences of Bill C-33, The Cultural Properties Act.
Tuesday, June 12, the Federal Court issued its ruling in favour of Heffel Auction House in their appeal against a decision by the Canadian Cultural Property Export Review Board (CCPERB) to bar the export of a Gustave Caillebotte. The Honourable Mr. Justice Manson’s judgement in Heffel Gallery v. the Attorney General, Canada breathes fresh air in to what, in our opinion, has always been a disservice to Canadians and has become increasingly so over the decades since Dad penned those astute remarks.
The Caillebotte in question is a good painting by a second tier French impressionist artist, a work owned in Canada for more than 35 years. In 2016, it was bought in a highly publicized Toronto auction sale for a modest price by an art gallery in the UK. The painting was subsequently blocked from export from Canada by the CCPERB, allowing it to be purchased by the Art Gallery of Ontario for the price paid by the London dealer.
Despite the auction house’s appeal, the Canadian Cultural Review Board upheld their decision under Bill C-33 qualifying the picture as of, “outstanding significance and national importance to Canada [...of] such a degree of national importance that its loss to Canada would significantly diminish the national heritage”. It was this broad interpretation of the Act by the Board by which the AGO was able to expropriate the painting) that Heffel subsequently challenged in court. (One need ask oneself if the painting was of such formidable importance why then did the AGO not participate to purchase the painting in the sale.)
What does this case reveal about the Act? As they say, “The devil is in the details...”
We suggest the most recent and blatant evidence of Dad’s prophetic concern is the “expropriation” of this Caillebotte, a “nice” painting but one of little importance in his oeuvre. In its current state, the Act’s criteria for the delay and/or blockage of an artwork’s export permit is so broadly interpreted by the Board that a work of art may be blocked from export if it may be used for “study purposes of an art movement”—a qualification that serves as a “catch all” for curators, able to be applied to nearly any work of art.
With the recent export delays placed on a Hepworth, an Ernst and a Picasso (drawing), it becomes evident that Canadian curators increasingly look to filed requests for export as a discount shopping basket, wherein if a work meets their collecting interests, with some creative prose they can block the work and attempt to make its purchase cheaply with money they don’t already have by applying for a Movable Property Grant.
To obtain these works controlled by the Canadian Cultural Property Export Review Board and the affiliated grants to pay for them, curators have taken advantage of a very broad interpretation by the Board of Canadian “national importance” to the detriment of private property laws. For the Caillebotte for instance, one can consult the details oneself of their reasoning for blocking export [Article 33]. However, to read that (1) the importance to Canadian cultural heritage of a French painting is in part because a large segment of a Canadian population find roots in France where Caillebotte painted and (2) that the title of the Caillebotte is ‘Irises” the same as a Van Gogh painting in the National Gallery of Canada need be considered only verbiage. Fluff! Nonsense! We cannot imagine this is what was intended when the act was composed by the law firm Stikeman Elliott, or by Mr Fraser Elliott, the Board’s 1st Chair. And it seems, Justice Manson agrees.
The short-term victory represented by Justice Manson’s judgement is that we shall surely see a retraction of the most recent export delays, including those on the Hepworth, Ernst and Picasso instituted by the Board.
If the damage has not already been inflicted on Canada as a country where one can leisurely own important fine art and do so without government intervention, the long-term picture for Canadians is more important and brighter in light of Justice Manson’s judgement.
We have been consistent since the inception of the Act that in our opinion that the system of export controls as they stand have had several unintended consequences contrary to the Canadian interests.
In addition to barring the export of important works from Canada, the Act has discouraged the import of important works into Canada. My father described this firsthand and details this in his Reminiscences. After the Act was announced but before it was made law, a couple of very important collectors (of Canadian art and beyond) relocated their collections to the United States.
The greater harm of the interpretation of the Act by the Board is that owners of great art will not bring them to Canada. My father cautioned government regulators 40 years ago that the Act risked being interpreted as something akin to a bank ( = Canada ) which welcomes deposits of money ( = importing fine art to Canada ) but has restrictions on withdrawals of funds ( = exporting fine art ). These restrictions discourage deposits/ imports of fine art into Canada.
When one looks at works of art requiring permission to export, one can well imagine that an affluent Canadian or a foreign national purchasing a second home or property in Canada, his/her lawyers would advise them strongly against importing fine works of art to hang in their Canadian home. The consequences are that fine works do not enter Canada. If they do not come to Canada they cannot easily be borrowed for exhibition purposes by Canadian museums. Should important fine works of art not be imported into Canada, there is no possibility that they may be donated to Canadian museums.
Unlike many countries, Canada has a dearth of important art of other origins. We need encourage owners or great art to bring them to their Canadian homes. We need encourage Canadians to buy not only “our” art but also great artwork of other countries and bring them to Canada.
Following Justice Manson’s ruling, we are cautiously optimistic that future deliberations of the Board will greater reflect the original intentions of the Act and the greater interests of Canadians.
By Alan Klinkhoff
© Alan Klinkhoff Gallery