NOLI ME TANGERE: REFINING QUEBEC'S IMMUNITY FROM SEIZURE LEGISLATION FOR CULTURAL OBJECTS.
| Author | Le Moine, Francois |
INTRODUCTION: A VERY REAL DANGER
Imagine the headlines if the police were to arrive with a warrant for seizure at the Montreal Museum of Fine Arts during an exhibition of German Expressionist works, following a claim made by a descendant of the owner of a work looted during the Second World War. Imagine the repercussions if an injunction were sought to prevent the Pointe-a-Clliere archaeological museum from returning an ancient object to a lender because it was suspected to have come from an illicit dig. Imagine the outcry if a large company were to try to enforce an arbitral decision by attempting to seize a work of art belonging to a foreign State while it was displayed at the Musee national des beaux-arts du Quebec. And moreover, imagine the utter embarrassment of a curator at one of these institutions when he or she would subsequently have to try organising an exhibition and convince a foreign lender--who would already be taking a risk by subjecting what is often a fragile object to transportation--that Quebec provides adequate legal guarantees to ensure the exhibition is well run and that, once completed, the object will be returned to the lender. Are Quebec museums really sheltered from the sort of scenarios described above? (1)
The international landscape has become much more complicated in the years since Quebec was one of the first jurisdictions to enact, in 1976, an anti-seizure law in respect of cultural objects. The many attempts at seizure which have shaken the art world over the last twenty years--of which the most famous is that of Portrait of Wally in New York in 1998--make lenders more hesitant and more demanding. Immunity from seizure is more than a mere matter of civil procedure, given that it has such a bearing on the capacity of cultural institutions to execute their public-interest mandates, which include the conservation and study of works, and the obtaining of high-quality works for display to the public. In our view, this issue is a constitutive component of Quebec's cultural policy.
The international developments on the laws governing immunity from seizure over the course of these recent decades has, to date, given rise to no reaction from the Quebec legislator, despite the fact that, of the five Canadian provinces that have enacted such a mechanism, the law of Quebec is likely the most susceptible to legal claims. We are not aware of any academic study or political analysis of the efficacy of the Quebec legislation. (2) If the aim of the legislator was indeed to avoid the possibility of any legal proceedings being brought with respect to a temporary exhibition organised within its territory, it is clear that the current law achieves this aim in part only.
This paper will seek to (I) explain the origin and development of the Quebec regime currently applicable; (3) (II) identify through the foreign case law the ways in which the Quebec legislation may prove inadequate; (III) determine why a generous immunity should be granted to cultural objects; and, finally (IV) propose some avenues for reform. Our aim is to identify the legal tools which are needed by Quebec cultural institutions to ensure the sustainability of international cultural exchanges and conservatorship so as to allow museums to perform their mission and to allow the public to continue to have access to high quality exhibitions.
ORIGINS OF THE QUEBEC LAW
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A DEMAND FROM THE KREMLIN
In 1975, to celebrate the 30th anniversary of the victory over Nazi Germany, the USSR organised a major exhibition entitled 'Master Paintings from the Hermitage and the State Russian Museum, Leningrad' in five US cities: Washington, Los Angeles, Houston, Detroit and New York, as well as in Mexico. (4) Canada successfully requested that the exhibition be extended there. Of the six candidate cities, two were selected to host the exhibition: Winnipeg and Toronto.
However, the history of Soviet public collections is an eventful one. The art works of many private collectors were expropriated in the aftermath of the Russian Revolution and, at the end of the Second World War, the Red Army looted hundreds of thousands of cultural objects. (5) The USSR therefore asked both Manitoba and Ontario to enact legislation to protect the objects in the exhibition from any claims. Prior to 1976, only two jurisdictions had enacted such legislation--the United States in 1965, (to prepare for a Soviet exhibition at the University of Richmond (6)) and the state of New York in 1968 (following a seizure of art works from a gallery owner (7)).
In Manitoba, the adoption of the law was the subject of some hesitation. In the midst of the Cold War--and in a province where a significant proportion of the inhabitants were of Ukrainian ancestry--certain conservative members of parliament questioned why it was necessary to prevent Manitobans from commencing legal proceedings in order to satisfy the demands of the Kremlin: "[i]t is the Secretary of the Communist Party of Russia that is asking me to deny my constituents a basic and fundamental right, namely the right to due process of law, due process through the courts." (8)
In spite of these publicly-stated concerns, the law was passed with a majority of 35 to 14 in a free vote (9) and the exhibition was a stunning success. Matters proved to be more complicated in Ontario, where the conservative minority government appeared hostile to any limitation of property rights and refused to propose similar legislation. (10)
The Montreal Museum of Fine Arts seized the opportunity. The Cultural Affairs Minister, Jean-Paul L'Allier, proposed amending the Code of Civil Procedure to satisfy the Russian demands. At that time, public opinion was above all preoccupied with the imminent opening of the Olympic Games in Montreal. The three political parties represented in the National Assembly readily agreed and the three readings of the Bill took place in a single day, 30 June 1976. (11) Mr L'Allier explained:
This measure is necessary given the requirements of certain countries which are suggesting prominent travelling exhibitions. In particular, the [Montreal] Museum of Fine Arts is offered, from time to time, such exhibitions and is unable to accommodate them specifically because it is unable to give such guarantees of immunity from seizure. In view of the significance of these exhibitions, and the value of the goods which are being displayed, it seems to us to be necessary to propose this amendment to the Code of Civil Procedure in order to allow the authorities of museums, both public and private, to negotiate, where appropriate, such exhibitions and to provide, following a governmental decision, i.e. a decision of the Lieutenant-Governor in Council, immunity from seizure. (12) The transcript of the short debates held in the National Assembly shows that the adoption of this amendment of the Civil Procedure Code was not controversial, unlike in Manitoba, and was not preceded by any detailed analysis of specific situations with which cultural institutions could be faced. The Bill was enacted with the simple goal of guaranteeing that the exhibition of art works originating from the USSR could take place. Even if the Minister was not explicit on this point, the speech from MNA Bellemare of the Union Nationale, who was also in favour of the Bill, leaves no doubt as to the factors which prompted the National Assembly to act so speedily:
Mister Speaker, I am very happy to support this bill because I believe that the Russians, despite the fact that it is a country with a totalitarian regime, have wonderful things to show to us. The legal principle which is before us is in accordance with bill number 56 which was presented last June by the Minister of Cultural Affairs of the province of Manitoba [...].
I understand that there are those who were forced to leave these totalitarian countries and who are now living permanently here and who may possibly wish to recover, through legal action, their property and other effects, which they lost when they changed their residence and migrated to Canada. I believe this is a sensible precaution which is grounded in the breadth of vision of the Minister, and in the formal request by the Soviet Government which asked for this assurance as a prerequisite to organizing this exhibition here. (13)
The former Civil Procedure Code was thus amended by the addition of article 553.1:
553.1.
Works of art or historical property brought into Quebec and placed or intended to be placed on public exhibit in Quebec are also exempt from seizure, if the Government declares them so, and for such time as it determines. Such works or property must not have been originally conceived, produced or created in Quebec.
The order in council passed in virtue of the first paragraph comes into force on its publication in the Gazette officielle du Quebec.
Exemption from seizure as prescribed in this article does not prevent the execution of judgments rendered to give effect to service contracts relating to the transportation, warehousing and exhibition of the works and property referred to in the first paragraph. (14)
Decree number 2596-76 published several weeks later in the Gazette officielle allowed the Montreal Museum of Fine Arts to host the exhibition.15 The annex to the Decree, comprising the list of the works to be displayed, included some of the greatest artists of the Western tradition: Titian, Caravaggio, Rembrandt, Velasquez, Poussin, Fragonard, Cezanne and Gauguin.
Following this episode, Ontario reacted. The conservative government of Ontario, who had refused to proceed in 1976, proposed a Bill in 1978 to ensure the arrival of the exhibition of the treasures of Tutankhamun. Mr Grande, for the New Democratic Party, then second opposition, stated during the debate that while he supported the Bill:
I have often wondered why in 1976 the government of Ontario and the people of the province of Ontario had the opportunity...
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