Art Law, Determination of National Importance, Canadian Cultural Review Board Heffel Decision
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). The Court determined that the Review Board’s determination that the painting is of national importance was unreasonable.
The Review Board is bound by the interpretation of the national importance requirement 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.
Until further notice, the Review Board will provide an applicant of an application for certification of cultural property with the option to either:
a) 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;
b) 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) included as part of its application for certification, 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:
a) the extent to which the object has a connection to Canada or to Canadian heritage;
b) 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
c) 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).
Paul’s art law practice includes acting for buyers and sellers, dealers, collectors, artists, galleries, museums, and art institutions. He has been involved as an art dealer and art advisor for many years.
Paul has lectured on art including events hosted by the University of British Columbia, and the Kelowna Art Gallery. He is a Director of the Kelowna Art Gallery.