Following a month-long public outrcry, the National Gallery of Canada (NGC) announced on April 26 that it would not proceed with its intended May 15 sale of Marc Chagall’s La Tour Eiffel. This is a satisfying end to a bizarre saga.
But the story of the proposed Chagall sale also reveals a number of shocking facts, specifically surrounding the secrecy of the process by which the NGC was seeking to sell it.
La Tour Eiffel is protected in Group V of the Canadian Cultural Property Export Control List, meaning that the NGC needed an export permit to sell it at auction. The Cultural Property Import and Export Act requires that application be made to an anonymous permit officer of the Canadian Border Services Agency. The officer was then charged with appointing from a roster an equally anonymous expert examiner, who was given 10 days to decide whether La Tour is, in the language of the act, an “object… of outstanding significance by reason of its esthetic qualities [and] its value in the study of the arts… and of such a degree of national importance that its loss to Canada would significantly diminish the national heritage.”
Given the fact that 302,992 people visited a Chagall exhibit last year at the Montreal Museum of Fine Arts (MMFA) – representing 23 per cent of all visits to the MMFA in 2017 – one might have expected the officer to decline the NGC’s request.
And yet, the unidentified examiner somehow concluded that the loss of the Chagall would not significantly diminish our national heritage. And on the basis of this one opinion – an opinion that no one had a right to see, let alone challenge – the NGC got its export permit. The entire process was conducted in complete secrecy, without a drop of accountability. And yet, it was totally legal.
The permit officer did not provide reasons for his or her decision; there is no equivalent of a court office where a member of the public can pay a nominal fee to read the examiner’s report. Meanwhile, the NGC also seemed intent on keeping the sale as low-key as possible: its board decided in December 2017 to sell but the gallery did not post that fact on its website. This despite its Disposition Policy, which states: “Attention will be given to transparency throughout the process.” In the end, we only found out because Christie’s publicized its auction three months later.
The CJN has submitted an urgent application for disclosure of the file under the Access to Information Act but it may take months to get a response, and when it comes it may deny all or some of the documents, or the information provided may be heavily redacted. In the meantime, The CJN also requested that the NGC voluntarily disclose its application. The gallery denied the request.
That sort of legal opacity might be justified in the case of private sellers. But in the wake of the cancelled Chagall sale, it is appropriate to ask whether institutions seeking to auction off publicly owned masterpieces to the highest bidder have a greater responsibility to inform the public of their intentions – especially when they are so controversial and, in the views of many experts and critics, wrongheaded. Indeed, the NGC’s former chief curator, Colin Bailey, praised La Tour Eiffel effusively in 1996, while Nathalie Bondil, director general and chief curator of the Montreal Museum of Fine Art told The CJN it is “a great, great example of Chagall” that “talks about peace, escaping from war, a theme Chagall shared with many Jews who came to Canada.”
This ordeal leaves one to consider how Chagall might have reacted upon learning La Tour was staying in Canada, not being sold to an uber-rich Russian oligarch or desert sheikhdom billionaire. Perhaps he would have been inspired to paint himself and his wife, Bella, floating above Paris, luminous in a dark blue sky, facing one another, champagne glasses in hand, forearms intertwined, huge smiles, adoring stares. And unheard by the viewer the word on their lips: L’chaim.
Murray Teitel is a Toronto barrister and freelance journalist.