Fellow appraiser Daphne Lange Rosenzweig, Ph.D, ISA CAPP sent me a recent practice notice from the Canadian Federal Court regarding the Heffel Gallery regarding a judicial review of the Canadian Cultural Property Export Review Board.
The important part of the notice states
Until further notice, the Review Board will provide an applicant for certification of cultural property with the option to either:
1. demonstrate that the object that is the subject of the application meets the test for national importance established by the Court in the Heffel Decision; or
2. request the Review Board defer rendering its decision in the application until after the Federal Court of Appeal renders its decision in the appeal of the Heffel Decision.
If you are a Canadian appraiser or an appraiser or art advisor working with the Canadian Cultural Property Export Review Board you should be familiar with this decision.
The Canadian Cultural Property Export Review Board reports on the practice notice
Source: Canadian Cultural Property Export Review BoardPractice notice: Determination of national importance pursuant to paragraph 11(1)(b) following the Federal Court of Canada decision in Heffel Gallery Limited v. The Attorney General of Canada, 2018 FC 605
Background
On June 12, 2018, the Federal Court of Canada (the Court) rendered its decision in Heffel Gallery Limited v. The Attorney General of Canada, 2018 FC 605 (the Heffel Decision). In this matter, the Applicant sought judicial review of the decision of the Canadian Cultural Property Export Review Board (the Review Board), made in accordance with paragraph 29(5)(a) of the Cultural Property Export and Import Act (the Act), to delay for six months the issuance of an export permit for a painting, Iris bleus, jardin du Petit Gennevilliers, by the French artist Gustave Caillebotte. The Review Board based its decision on its determination that the painting is of outstanding significance and national importance, and that an institution or public authority in Canada might make a fair offer to purchase the painting. The Court determined that the Review Board's determination that the painting is of national importance was unreasonable.
For the Review Board to delay the issuance of an export permit for an object, the Review Board must be satisfied that, among other matters, that the object is of such a degree of national importance that its loss to Canada would significantly diminish the national heritage (paragraph 11(1)(b) of the Act). In the Heffel Decision the Court concluded that to meet the requirements of paragraph 11(1)(b), the object must have a direct connection with the cultural heritage that is particular to Canada.
Although the Heffel Decision was rendered in the context of the review by the Review Board of an application for an export permit made pursuant to section 29 of the Act, the requirement set out in paragraph 11(1)(b) that an object be of national importance also applies in the context of Review Board determinations relating to income tax matters pursuant to sections 32 and 33 of the Act. These determinations are made in respect of applications which are commonly referred to as applications for certification of cultural property that a person has disposed of or proposes to dispose of to a designated institution or public authority.
The Review Board is bound by the interpretation of the national importance requirement of paragraph 11(1)(b) adopted by the Court, which is now applicable to its decision-making in both requests for review of applications for export permits and applications for certification of cultural property.
The Attorney General of Canada has appealed the Heffel Decision to the Federal Court of Appeal. Nevertheless, the Review Board is bound to apply the Heffel Decision while the appeal is pending.
Practice notice
Until further notice, the Review Board will provide an applicant for certification of cultural property with the option to either:
1. demonstrate that the object that is the subject of the application meets the test for national importance established by the Court in the Heffel Decision; or
2. request the Review Board defer rendering its decision in the application until after the Federal Court of Appeal renders its decision in the appeal of the Heffel Decision.
An applicant who elects the first option must address, in its statement of outstanding significance and national importance (OS/NI Statement) how the object that is the subject of the application has a direct connection with the cultural heritage that is particular to Canada.
In determining whether an object meets the test for national importance established by the Court in the Heffel Decision, the factors that the Review Board will consider include:
the extent to which the object has a connection to Canada or to Canadian heritage;
the extent to which the object had an influence on the Canadian public, the practices of Canadian creators or Canadians working in a particular field of work or study; and
the extent to which the object's connection to the cultural heritage is particular to Canada.
This test and these factors will be applied by the Review Board with respect to applications for certification of objects that were made by Canadian creators, objects that were created by creators who are not Canadian, and objects for which there are no creators (e.g., meteorites and mineral specimens).
Example of application
In an application for certification of an abstract modernist painting created by an American artist, the applicant should include in its OS/NI Statement the extent of the connection that the painting has to Canada or Canadian heritage. A connection might be established if the painting had been publicly exhibited in an important museum or art gallery exhibition held in Canada. In addition, the applicant should include in the statement the influence that the object had on the Canadian public or Canadian artists. Similarly, the applicant should also include a description of how the connection to cultural heritage is particular to Canada as opposed to the cultural heritage of other nations. Finally, the applicant should indicate how the loss of the painting to Canada would significantly diminish the national heritage.
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