Insights and Commentary from Dentons
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dentons.com Insights and Commentary from Dentons On March 31, 2013, three pre-eminent law firms—Salans, Fraser Milner Casgrain, and SNR Denton—combined to form Dentons, a Top 10 global law firm with more than 2,500 lawyers and professionals worldwide. This document was authored by representatives of one of the founding firms prior to our combination launch, and it continues to be oered to provide our clientsG withro thewing information with they need to do business in an increasingly complex, interconnected and competitive marketplace. The role of government has never been more critical Focus on International Trade JULY 2012 Importing and Exporting Cultural 1 Importing and Exporting Cultural Property – Key Considerations Property – Key Considerations By Olivia Wright and Jaime Seidner 2 Contact Us The cross‐border movement of cultural property is highly regulated. While many engaged in the business of exporting and importing cultural property will understand the legal complexities involved, the determination of whether a particular transaction complies with Canadian law is made on a case‐by‐case basis. As such, parties should discuss the matters addressed below with their advisors to review all aspects of transaction prior to engaging in the regulated activity. In Canada, the regulation of the cross‐border movement of cultural property is achieved principally through two statutory controls: the Cultural Property Export and Import Act and the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act. Cultural property can be broadly defined as objects of historical, cultural and scientific significance, including objects of art. Under the Cultural Property Export and Import Act, persons are prohibited from exporting or attempting to export (whether permanently or temporarily) from Canada cultural property set out in the Canadian Cultural Property Export Control List (the Control List) without a permit. These restrictions may affect gifting and estate planning of bequests of art, antiques or other cultural property to beneficiaries living outside of Canada. The Control List identifies cultural property the control of which has been deemed necessary “to preserve the natural heritage in Canada”, including certain objects of ethnographic material culture, objects of applied and decorative art, objects of fine art, textual records, graphic record © 2012 Fraser Milner Casgrain LLP and sound recordings of a certain origin, age vicunas, Asian and African elephants, and certain and/or value. Importantly, the Control List varieties of trees. Among other things, the Act captures non‐Canadian materials, including, for requires that, subject to certain exceptions, a example, certain objects made, reworked or permit or certificate of written authorization be adapted by aboriginal persons of another country, obtained for the export, import and/or and certain objects of fine art made outside of interprovincial transport of any identified plant or Canada that have a certain fair market value. The animal (or derivative thereof), and prohibits the Control List does not apply to objects which are import of any plant or animal (or derivative either less than 50 years old, or made by a person thereof) that possessed, distributed or that is still living. Export permits will be issued transported in contravention of any foreign law. immediately (and without further consideration The Act is sufficiently broad to capture, for of whether an object is included on the Control example, jewellery or sculptures made of ivory or List) where certain circumstances are met, for whale bone, and wooden frames and collectible example, if it can be established that the object in furniture made from a species of wood identified question has not been in Canada for 35 years. A as endangered. decision to deny an export permit may be The shipping packaging for art work and other appealed to the Canadian Cultural Export Review cultural property may also be subject to border Board. restrictions. In Canada, the Canadian Food The Cultural Property Export and Import Act also Inspection Agency (CFIA) regulates all wood implements Canada’s obligations under packaging including but not limited to crates and international agreements to combat the illicit palettes. Untreated wood packaging is strictly traffic in cultural property. Accordingly, the Act prohibited. Persons engaged in the shipment of prohibits persons (including Canadians citizens goods should therefore verify the admissibility of and permanent residents outside of Canada) from any wood packaging prior to shipment to or from exporting or transferring cultural property from Canada, and may find it preferable to avoid wood certain occupied territories except as permitted packaging where possible. Please note that many under the applicable laws of the territory, or as is countries apply similar or more stringent necessary to protect or preserve the property in standards. question. The Act further prohibits the Prior to engaging in the export and import of importation of foreign cultural property illegally cultural property, institutions, organizations and exported from a country with which Canada has a individuals need to ascertain whether the object cultural property agreement on the illicit in question is subject to Canadian restrictions on international traffic in cultural property (e.g., the trade. As indicated above, this exercise UNESCO Convention on the Means of Prohibiting necessarily requires knowledge of the cultural and Preventing the Illicit Import, Export and property itself (including value, Transfer of Ownership of Cultural Property). composition/materials, and origin), as well as a The Wild Animal and Plant Protection and thorough understanding of applicable Canadian Regulation of International and Interprovincial laws and, those of the country to or from which Trade Act may also apply to (and restrict) the the goods are being shipped. export, import, transfer or possession of objects of art to the extent that these consist of or incorporate animals or plants (or derivatives thereof) identified as endangered. The list of endangered plants and animals is extensive, including, for example, certain species of whales, fmc‐law.com MONTRÉAL OTTAWA TORONTO EDMONTON CALGARY VANCOUVER Contact Us For more information, please contact one of the following: Aaron Milrad 416 863 4529 aaron.milrad@fmc‐law.com Jaime Seidner 416 863 4756 jaime.seidner@fmc‐law.com Olivia Wright 613 783 9652 olivia.wright@fmc‐law.com fmc‐law.com MONTRÉAL OTTAWA TORONTO EDMONTON CALGARY VANCOUVER .