Cultural Property Export and Import Act

Contents

1Short title#

This Act may be cited as the Cultural Property Export and Import Act.^note

2Definitions#

In this Act,

Control List means the Canadian Cultural Property Export Control List established under section 4; (nomenclature)

expert examiner means a person or institution designated as an expert examiner under section 6; (expert-vérificateur)

export permit means a permit to export issued by a permit officer under this Act; (licence)

general permit means a permit to export issued by the Minister under section 17; (licence générale)

institution means an institution that is publicly owned and is operated solely for the benefit of the public, that is established for educational or cultural purposes and that conserves objects and exhibits them or otherwise makes them available to the public; (établissement)

Minister means such member of the Queen’s Privy Council for Canada as is designated by the Governor in Council as the Minister for the purposes of this Act; (ministre)

permit officer means a person designated as a permit officer under section 5; (agent)

public authority means Her Majesty in right of Canada or a province, an agent of Her Majesty in either such right, a municipality in Canada, a municipal or public body performing a function of government in Canada or a corporation performing a function or duty on behalf of Her Majesty in right of Canada or a province; (administration)

resident of Canada means, in the case of a natural person, a person who ordinarily resides in Canada and, in the case of a corporation, a corporation that has its head office in Canada or maintains one or more establishments in Canada to which employees of the corporation employed in connection with the business of the corporation ordinarily report for work; (résident)

Review Board means the Canadian Cultural Property Export Review Board established by section 18. (Commission)

^note

Her Majesty

3Binding on Her Majesty#

This Act is binding on Her Majesty in right of Canada or a province.

Canadian Cultural Property Export Control List

4Establishment of Control List#

(1)The Governor in Council, on the recommendation of the Minister made after consultation with the Minister of Foreign Affairs, may by order establish a Canadian Cultural Property Export Control List.

(2)Subject to subsection (3), the Governor in Council may include in the Control List, regardless of their places of origin, any objects or classes of objects hereinafter described in this subsection, the export of which the Governor in Council deems it necessary to control in order to preserve the national heritage in Canada:

(a)objects of any value that are of archaeological, prehistorical, historical, artistic or scientific interest and that have been recovered from the soil of Canada, the territorial sea of Canada or the inland or other internal waters of Canada;

(b)objects that were made by, or objects referred to in paragraph (d) that relate to, the aboriginal peoples of Canada and that have a fair market value in Canada of more than five hundred dollars;

(c)objects of decorative art, hereinafter described in this paragraph, that were made in the territory that is now Canada and are more than one hundred years old:

(i)glassware, ceramics, textiles, woodenware and works in base metals that have a fair market value in Canada of more than five hundred dollars, and

(ii)furniture, sculptured works in wood, works in precious metals and other objects of decorative art that have a fair market value in Canada of more than two thousand dollars;

(d)books, records, documents, photographic positives and negatives, sound recordings, and collections of any of those objects that have a fair market value in Canada of more than five hundred dollars;

(e)drawings, engravings, original prints and water-colours that have a fair market value in Canada of more than one thousand dollars; and

(f)any other objects that have a fair market value in Canada of more than three thousand dollars.

(3)No object shall be included in the Control List if that object is less than fifty years old or was made by a natural person who is still living.

(4)For the purposes of this Act, an object within a class of objects included in the Control List is deemed to be an object included in the Control List.

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Permit Officers

5Designation of permit officers#

The Minister, with the approval of the Minister of Public Safety and Emergency Preparedness, may designate any persons or classes of persons employed by the Canada Border Services Agency as permit officers to receive applications for export permits and to issue export permits under this Act.^note

Expert Examiners

6Designation of expert examiners#

(1)The Minister may designate any resident of Canada or any institution in Canada as an expert examiner for the purposes of this Act.

(2)An expert examiner that is not an agent of Her Majesty in right of Canada or a province or is not an employee of, or an employee of an agent of, Her Majesty in right of Canada or a province shall be paid such remuneration for services performed under this Act as may be approved by the Treasury Board.

(3)An expert examiner or, where an expert examiner is an institution, the person acting for the institution is entitled, within such limits as may be established by the Treasury Board, to be paid reasonable travel and living expenses incurred while absent from his ordinary place of residence in connection with services performed under this Act.

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Export Permits

7Immediate issue of export permit#

A permit officer who receives from a resident of Canada an application for an export permit shall issue the permit forthwith if the person applying for the permit establishes to the satisfaction of the permit officer that the object in respect of which the application is made

(a)was imported into Canada within the thirty-five years immediately preceding the date of the application and was not exported from Canada under a permit issued under this Act prior to that importation;

(b)was lent to an institution or public authority in Canada by a person who was not a resident of Canada at the time the loan was made; or

(c)is to be removed from Canada for a purpose prescribed by regulation for a period of time not exceeding such period of time as may be prescribed by regulation for the purposes of this paragraph.

^note

8Determination by permit officer#

(1)A permit officer who receives from a resident of Canada an application for an export permit in respect of an object shall, where he does not issue an export permit under section 7, and where he is not aware of any notice of refusal sent in respect of the object under subsection 13(1) during the two years immediately preceding the date of the application, determine whether the object is included in the Control List.

(2)Where a permit officer determines that an object in respect of which an application for an export permit is made is not included in the Control List, the permit officer shall forthwith issue an export permit in respect of the object.

(3)Where a permit officer determines that an object in respect of which an application for an export permit is made is or might be included in the Control List, the permit officer shall forthwith refer the application to an expert examiner for consideration.

^note

9Determination by expert examiner#

Where an application for an export permit is referred to an expert examiner pursuant to subsection 8(3), the expert examiner shall forthwith determine whether the object in respect of which the application is made is included in the Control List.^note

10Where object not included in Control List#

Where an expert examiner determines that an object that is the subject of an application for an export permit that has been referred to him is not included in the Control List, the expert examiner shall forthwith in writing advise the permit officer who referred the application to issue an export permit in respect of the object and shall forthwith send a copy of that advice to the Review Board and the Minister.^note

11Where object included in Control List#

(1)Where an expert examiner determines that an object that is the subject of an application for an export permit that has been referred to him is included in the Control List, the expert examiner shall forthwith further determine

(a)whether that object is of outstanding significance by reason of its close association with Canadian history or national life, its aesthetic qualities, or its value in the study of the arts or sciences; and

(b)whether the object is of such a degree of national importance that its loss to Canada would significantly diminish the national heritage.

(2)Where an expert examiner determines that an object that is the subject of an application for an export permit that has been referred to him is not of outstanding significance under paragraph (1)(a) or does not meet the degree of national importance referred to in paragraph (1)(b), the expert examiner shall forthwith in writing advise the permit officer who referred the application to issue an export permit in respect of the object and shall forthwith send a copy of that advice to the Review Board and the Minister.

(3)Where an expert examiner determines that an object that is the subject of an application for an export permit that has been referred to him is of outstanding significance under paragraph (1)(a) and meets the degree of national importance referred to in paragraph (1)(b), the expert examiner shall forthwith in writing advise the permit officer who referred the application not to issue an export permit in respect of the object and shall provide the permit officer with the reasons therefor.

^note

12Issue of export permit#

Subject to sections 14 and 16, a permit officer shall issue an export permit forthwith where the permit officer is advised by an expert examiner or directed by the Review Board to do so.^note

13Notice of refusal#

(1)Where a permit officer is advised by an expert examiner pursuant to subsection 11(3) not to issue an export permit, the permit officer shall send a written notice of refusal to the applicant, which notice shall include the reasons given by the expert examiner for the refusal.

(2)A permit officer who sends a notice of refusal under subsection (1) shall forthwith send a copy thereof to the Review Board.

^note

14Deposit of copy#

No export permit shall, unless it is issued under section 7, be issued under this Act for an object within a class of objects prescribed under paragraph 39(d), where the object is included in the Control List, until a copy of that object has been deposited by the person applying for the permit in such institution as the Minister may direct.^note

15Alteration of permits by Minister and notice#

The Minister may amend, suspend, cancel or reinstate any export permit, other than an export permit issued on the direction of the Review Board, and where an export permit is amended, suspended, cancelled or reinstated, the Minister shall forthwith send a written notice to that effect to the person who applied for the permit.^note

16No export permit for two years#

No export permit shall, unless it is issued under section 7 or on the direction of the Review Board pursuant to section 29 or 30, be issued under this Act in respect of an object, where the object is included in the Control List, during a period of two years from the date on which a notice of refusal was sent in respect of that object under subsection 13(1).^note

General Permits

17General permits to export#

(1)The Minister may issue to any resident of Canada who applies therefor a general permit to export any objects included in the Control List subject to such terms and conditions as the Minister may require and may at any time amend, suspend, cancel or reinstate any such permit.

(2)The Minister may, with the concurrence of the Minister of Foreign Affairs, issue generally to all persons a general permit to export objects within any class of objects that is included in the Control List and that is specified in the permit subject to such terms and conditions as the Minister may require and may, with the concurrence of the Minister of Foreign Affairs, at any time amend, suspend, cancel or reinstate any such permit.

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Review Board

Review Board Established

18Review Board established#

(1)There is hereby established a board to be known as the Canadian Cultural Property Export Review Board, consisting of a Chairperson and not more than nine other members appointed by the Governor in Council on the recommendation of the Minister.

(2)The Chairperson and one other member shall be chosen generally from among residents of Canada, and

(a)up to four other members shall be chosen from among residents of Canada who are or have been officers, members or employees of art galleries, museums, archives, libraries or other collecting institutions in Canada; and

(b)up to four other members shall be chosen from among residents of Canada who are or have been dealers in or collectors of art, antiques or other objects that form part of the national heritage.

(3)The Review Board may authorize one of its members to act as Chairperson in the event of the absence or incapacity of the Chairperson or if the office of Chairperson is vacant.

(4)Three members, at least one of whom is a person described in paragraph (2)(a) and one of whom is a person described in paragraph (2)(b), constitute a quorum of the Review Board.

^note

19Remuneration#

(1)Each member of the Review Board who is not an employee of, or an employee of an agent of, Her Majesty in right of Canada or a province shall be paid such salary or other amount by way of remuneration as may be fixed by the Governor in Council.

(2)Each member of the Review Board is entitled, within such limits as may be established by the Treasury Board, to be paid reasonable travel and living expenses incurred while absent from his ordinary place of residence in connection with the work of the Review Board.

Duties

20Duties#

The Review Board shall, on request,

(a)pursuant to section 29, review applications for export permits;

(b)pursuant to section 30, make determinations respecting fair cash offers to purchase; and

(c)pursuant to section 32, make determinations for the purposes of subparagraph 39(1)(a)(i.1), paragraph 110.1(1)(c), the definition total cultural gifts in subsection 118.1(1) and subsection 118.1(10) of the Income Tax Act.

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Head Office and Sittings

21Head office#

(1)The head office of the Review Board shall be at such place in Canada as the Governor in Council may by order prescribe.

(2)The Review Board may sit at such times and places in Canada as it considers necessary or desirable for the proper conduct of its business.

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Advisers

22Expert advice#

(1)The Review Board may call on any person who has professional, technical or other special knowledge to assist it in any matter in an advisory capacity.

(2)The power of the Chief Administrator of the Administrative Tribunals Support Service of Canada under subsection 11(2) of the Administrative Tribunals Support Service of Canada Act may be exercised to engage the services of valuation experts to assist the Review Board in making determinations pursuant to section 30 respecting fair cash offers to purchase or pursuant to section 32 respecting the fair market value of objects disposed of, or proposed to be disposed of, to institutions or public authorities.

^note

23 #

[Repealed, 2014, c. 20, s. 391] (repealed)

Rules and Procedure

24Rules#

The Review Board may make rules not inconsistent with this Act for the conduct of its proceedings and the performance of its duties and functions under this Act.^note

25Review Board may receive information#

The Review Board may receive any information presented to it orally or in writing that it considers to be relevant to any matter before it and in so doing it is not bound by any legal or technical rules of evidence.^note

26Information given to applicant#

The Review Board shall make the substance of any information received by it in respect of a matter before it known to the person who applied for an export permit in respect of the object to which the matter relates, or to the person, institution or public authority that applied for a determination under subsection 32(1), as the case may be, and, before the Review Board decides the matter, it shall give that person, institution or public authority an opportunity to make representations in respect of that information.^note

27Exclusion from hearing#

The Review Board may exclude any person not directly interested in a matter being heard before it from the hearing unless, where the matter is in respect of an object in respect of which an application for an export permit has been made, the applicant for the permit requests that the hearing be held in public, in which case it shall be so held.^note

28Review Board shall dispose of matters informally and expeditiously#

The Review Board shall dispose of any matter before it as informally and expeditiously as, in its opinion, the circumstances and considerations of fairness will permit.^note

Review of Applications for Export Permits

29Request for review by Review Board#

(1)Any person who receives a notice of refusal under section 13 or a notice under section 15 may, within thirty days after the date on which the notice was sent, by notice in writing given to the Review Board, request a review of his application for an export permit by the Review Board.

(2)The Review Board shall review an application for an export permit and, unless the circumstances of a particular case require otherwise, render its decision within four months after the date a request is received under subsection (1).

(3)In reviewing an application for an export permit, the Review Board shall determine whether the object in respect of which the application was made

(a)is included in the Control List;

(b)is of outstanding significance for one or more of the reasons set out in paragraph 11(1)(a); and

(c)meets the degree of national importance referred to in paragraph 11(1)(b).

(4)Where the Review Board determines that an object fails to meet one or more of the criteria set out in subsection (3), it shall direct a permit officer to issue an export permit forthwith in respect of the object.

(5)Where the Review Board determines that an object meets all of the criteria set out in subsection (3), it shall,

(a)if it is of the opinion that a fair offer to purchase the object might be made by an institution or public authority in Canada within six months after the date of its determination, establish a delay period of not less than two months and not more than six months during which the Review Board will not direct that an export permit be issued in respect of the object; or

(b)in any other case, direct a permit officer to issue an export permit forthwith in respect of the object.

(6)Where the Review Board establishes a delay period under paragraph (5)(a) in respect of an object, the Board shall give written notice of the delay period to the person who has applied for an export permit in respect of the object and to the Minister, which notice shall include the reasons for the determination of the Board that the object meets all of the criteria set out in subsection (3).

(7)The Minister, on receiving notice of a delay period under subsection (6), shall advise such institutions and public authorities in Canada as the Minister sees fit of the delay period and of the object in respect of which the delay period was established.

^note

30Request for determination of fair offer to purchase#

(1)Subject to subsection (2), where the Review Board establishes a delay period under paragraph 29(5)(a) in respect of an object and an offer to purchase the object is made by an institution or a public authority in Canada within that period, either the person who applied for an export permit in respect of the object or the institution or public authority making the offer to purchase may, where the offer is not accepted, by notice in writing given to the Review Board, request the Review Board to determine the amount of a fair cash offer to purchase.

(2)No request may be made under subsection (1) less than thirty days before the end of the delay period established under paragraph 29(5)(a) in respect of the object in respect of which the request is made.

(3)Where the Review Board receives a request under subsection (1), it shall determine the amount of a fair cash offer to purchase the object in respect of which the request is made and advise the person who applied for an export permit in respect of the object and the institution or public authority that offered to purchase the object of its determination.

(4)Where the Review Board establishes a delay period under paragraph 29(5)(a) in respect of an object and does not receive a request under subsection (1) in respect of the object, it shall forthwith, after the expiration of the delay period and on the request of the person who requested the review under subsection 29(1), direct a permit officer to issue an export permit forthwith in respect of the object.

(5)Where the Review Board establishes a delay period under paragraph 29(5)(a) in respect of an object and receives a request under subsection (1) in respect of the object, it shall, after the expiration of the delay period or after it has determined the amount of a fair cash offer to purchase the object under subsection (3), whichever time is the later, and on the request of the person who requested the review under subsection 29(1), direct a permit officer to issue an export permit forthwith in respect of the object unless it is satisfied that an institution or public authority has, before the request under this subsection was made, offered to purchase the object for an amount equal to or greater than the amount of the fair cash offer to purchase determined by the Review Board.

^note

31Limitation on export permits#

The Review Board shall not direct that an export permit be issued except in accordance with section 29 or 30.^note

Determination Relating to Income Tax Matters

32Request for determination of Review Board#

(1)For the purposes of subparagraph 39(1)(a)(i.1), paragraph 110.1(1)(c), the definition total cultural gifts in subsection 118.1(1) and subsection 118.1(10) of the Income Tax Act, where a person disposes of or proposes to dispose of an object to an institution or a public authority designated under subsection (2), the person, institution or public authority may request, by notice in writing given to the Review Board, a determination by the Review Board as to whether the object meets the criterion set out in paragraph 29(3)(b) and a determination by the Review Board of the fair market value of the object.

(2)For the purposes of subparagraph 39(1)(a)(i.1), paragraph 110.1(1)(c), the definition total cultural gifts in subsection 118.1(1), subsection 118.1(10) and section 207.3 of the Income Tax Act, the Minister may designate any institution or public authority indefinitely or for a period of time, and generally or for a specified purpose.

(3)The Minister may at any time revoke a designation made under subsection (2).

(4)The Review Board shall consider a request made under subsection (1) and, unless the circumstances of a particular case require otherwise, make a determination within four months after the date the request is received and shall give notice of the determination in writing or by electronic means to the person who has disposed of, or who proposes to dispose of, the object and, where the request was made by a designated institution or public authority, to the designated institution or public authority.

(5)Where the Review Board has, under subsection (4), determined the fair market value of an object in respect of its disposition or proposed disposition, the Review Board

(a)shall, on request in writing by the person who has disposed of, or who proposes to dispose of, the object to a designated institution or public authority or by an agent of such a person appointed for that purpose, made within twelve months after the day on which notice was given under that subsection, redetermine the fair market value of the object; and

(b)may, on its own initiative, at any time, redetermine the fair market value of the object.

(6)In the case of a redetermination under paragraph (5)(a), the Review Board shall, unless the circumstances of a particular case require otherwise, make the redetermination within four months after it receives the request under that paragraph and shall give notice of the redetermination in writing or by electronic means to the person who made the request.

(7)In the case of a redetermination under paragraph (5)(b), the Review Board shall give notice of the redetermination in writing or by electronic means to the person who has disposed of, or who proposes to dispose of, the object and, where the request made under subsection (1) in relation to the object was made by a designated institution or public authority, to the designated institution or public authority.

(8)Unless the circumstances of a particular case require otherwise, the Review Board shall not redetermine the fair market value of an object more than once.

(9)A redetermination under subsection (5) in respect of a proposed disposition is not subject to appeal to or review by any court.

^note

Income Tax Certificate

33Income tax certificate#

(1)Where the Review Board determines or redetermines the fair market value of an object in respect of which a request was made under section 32 and determines that the object meets the criterion set out in paragraph 29(3)(b), it shall, where the object has been irrevocably disposed of to a designated institution or public authority, issue to the person who made the disposition a certificate attesting to the fair market value and to the meeting of that criterion , in such form as the Minister of National Revenue may specify.

(1.1)The Review Board shall send a copy of a certificate referred to in subsection (1) to the Minister of National Revenue.

(1.2)Where the Review Board has issued more than one certificate referred to in subsection (1) in relation to an object, the last certificate is deemed to be the only certificate issued by the Review Board in relation to that object.

(2)A member of the Review Board or an official of the Administrative Tribunals Support Service of Canada may communicate to an official of the Canada Revenue Agency, solely for the purposes of administering the Income Tax Act, information obtained under this Act for the purposes of administering this section and sections 32, 33.1 and 33.2.

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Appeals Before the Tax Court of Canada

33.1Appeal of redetermination of fair market value#

(1)Any person who has irrevocably disposed of an object, the fair market value of which has been redetermined under subsection 32(5), to a designated institution or public authority may, within ninety days after the day on which a certificate referred to in subsection 33(1) is issued in relation to that object, appeal the redetermination to the Tax Court of Canada.

(2)On an appeal under subsection (1), the Tax Court of Canada may confirm or vary the fair market value and, for the purposes of the Income Tax Act, the value fixed by the Court is deemed to be the fair market value of the object determined by the Review Board in respect of its disposition.

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33.2Extension of time for appeal#

(1)Where an appeal has not been instituted by a person under section 33.1 within the time limited by that section, the person may make an application to the Tax Court of Canada for an order extending the time within which the appeal may be instituted and the Court may make an order extending the time for appealing and may impose such terms as it considers just.

(2)An application made under subsection (1) shall set out the reasons why the appeal was not instituted within the time limited by section 33.1.

(3)An application made under subsection (1) shall be made by filing in the Registry of the Tax Court of Canada, in accordance with the provisions of the Tax Court of Canada Act, three copies of the application accompanied by three copies of the notice of appeal.

(4)The Tax Court of Canada shall send a copy of each application made under this section to the office of the Deputy Attorney General of Canada.

(5)No order shall be made under this section unless

(a)the application is made within one year after the expiration of the time limited by section 33.1 for appealing; and

(b)the person making the application demonstrates that

(i)within the time limited by section 33.1 for appealing, the person

(A)was unable to act or to instruct another to act in the person’s name, or

(B)had a bona fide intention to appeal,

(ii)given the reasons set out in the application and the circumstances of the case, it would be just and equitable to grant the application,

(iii)the application was made as soon as circumstances permitted, and

(iv)there are reasonable grounds for the appeal.

^note

Report to Minister

34Report to Minister#

The Chairperson of the Review Board shall, as soon as possible after March 31 in each year, submit to the Minister a report of the operations of the Review Board for the previous fiscal year and its recommendations, if any.^note

Financial

35Grants and loans from moneys appropriated#

The Minister may, out of moneys appropriated by Parliament for such purposes, make grants and loans to institutions and public authorities in Canada for the purchase of objects in respect of which export permits have been refused under this Act or for the purchase of cultural property situated outside Canada that is related to the national heritage.^note

36Canadian Heritage Preservation Endowment Account established#

(1)There shall be established in the accounts of Canada a special account to be known as the Canadian Heritage Preservation Endowment Account.

(2)There shall be credited to the Canadian Heritage Preservation Endowment Account

(a)all moneys received by Her Majesty by gift, bequest or otherwise for the purpose of making grants to institutions and public authorities in Canada for the purchase of objects in respect of which export permits have been refused under this Act, or for the purchase of cultural property situated outside Canada that is related to the national heritage;

(b)all moneys received by Her Majesty as income on or as proceeds from the sale of any securities received by Her Majesty for a purpose referred to in paragraph (a); and

(c)an amount representing interest on the balance from time to time to the credit of the account at such rates and calculated in such manner as the Governor in Council may, on the recommendation of the Minister of Finance, prescribe.

(3)There may be charged to the Canadian Heritage Preservation Endowment Account such amounts as the Minister may expend otherwise than under section 35 for grants to institutions and public authorities in Canada for the purchase of objects in respect of which export permits have been refused under this Act or for the purchase of cultural property situated outside Canada that is related to the national heritage.

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Convention for the Protection of Cultural Property in the Event of Armed Conflict and Its Protocols

36.1Definitions#

(1)The following definitions apply in this section.

Convention means the Convention for the Protection of Cultural Property in the Event of Armed Conflict, done at The Hague on May 14, 1954. Article 1 of the Convention is set out in the schedule. (convention)

First Protocol means the first protocol, done at The Hague on May 14, 1954, to the Convention. (premier protocole)

Second Protocol means the second protocol, done at The Hague on March 26, 1999, to the Convention. (deuxième protocole)

State Party means a state that is a party to the Convention and the First or Second Protocol. (État partie)

(2)No person shall knowingly export or otherwise remove cultural property as defined in subparagraph (a) of Article 1 of the Convention from an occupied territory of a State Party to the Second Protocol, unless the export or removal conforms with the applicable laws of that territory or is necessary for the property’s protection or preservation.

(3)Despite anything in this Act or any other Act, a person who commits an act or omission outside Canada that if committed in Canada would constitute an offence under subsection (2), or a conspiracy or an attempt to commit such an offence, or being an accessory after the fact or counselling in relation to such an offence, is deemed to have committed that act or omission in Canada if the person

(a)is a Canadian citizen;

(b)is not a citizen of any state and ordinarily resides in Canada; or

(c)is a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act and is, after the commission of the act or omission, present in Canada.

(4)If the government of a State Party submits a request in writing to the Minister for the recovery and return of any cultural property that has been exported from an occupied territory of that State Party and that is in Canada in the possession of or under the control of any person, institution or public authority, the Attorney General of Canada may institute an action in the Federal Court or in a superior court of a province for the recovery of the property by the State Party.

(5)Notice of the commencement of an action under this section on behalf of a State Party shall be served by the Attorney General of Canada on such persons and given in such manner as is provided by the rules of the court in which the action is taken, or, if the rules do not so provide, served on such persons and given in such manner as is directed by a judge of the court.

(6)The court in which an action has been taken under this section may, after affording all persons that it considers to have an interest in the action a reasonable opportunity to be heard, make an order for the recovery of the property in respect of which the action has been taken or any other order sufficient to ensure the return of the property to the State Party, if the court is satisfied that the property was exported in contravention of the applicable laws of the occupied territory of the State Party or was imported into Canada for its protection or preservation and that the amount fixed under subsection (7), if any, has been paid.

(7)The court in which an action has been taken under this section may fix any amount that it considers just in the circumstances to be paid as compensation by the State Party to a person, institution or public authority that establishes to the satisfaction of the court that the person, institution or public authority is a bona fide purchaser for value or has a valid title to the property in respect of which the action has been taken and had no knowledge at the time the property was purchased or the title to the property was acquired that the property

(a)had been exported in contravention of the applicable laws of the occupied territory of the State Party; or

(b)had been imported into Canada for its protection or preservation.

(8)The court may, at any time in the course of an action under this section, order that the property in respect of which the action has been taken be turned over to the Minister for safe-keeping and conservation pending final disposition of the action.

(9)The Minister shall, on receipt of a copy of a court order made under subsection (6), issue a permit authorizing any person authorized by the State Party on behalf of which the action was taken to export the property in respect of which the order was made to that State.

(10)Section 39 of the Federal Courts Act does not apply in respect of any action taken under this section.

^note

Foreign Cultural Property

37Definitions#

(1)In this section,

cultural property agreement, in relation to a foreign State, means an agreement between Canada and the foreign State or an international agreement to which Canada and the foreign State are both parties, relating to the prevention of illicit international traffic in cultural property; (accord)

foreign cultural property, in relation to a reciprocating State, means any object that is specifically designated by that State as being of importance for archaeology, prehistory, history, literature, art or science; (biens culturels étrangers)

reciprocating State means a foreign State that is a party to a cultural property agreement. (État contractant)

(2)From and after the coming into force of a cultural property agreement in Canada and a reciprocating State, it is illegal to import into Canada any foreign cultural property that has been illegally exported from that reciprocating State.

(3)Where the government of a reciprocating State submits a request in writing to the Minister for the recovery and return of any foreign cultural property that has been imported into Canada illegally by virtue of subsection (2) and that is in Canada in the possession of or under the control of any person, institution or public authority, the Attorney General of Canada may institute an action in the Federal Court or in a superior court of a province for the recovery of the property by the reciprocating State.

(4)Notice of the commencement of an action under this section shall be served by the Attorney General of Canada on such persons and given in such manner as is provided by the rules of the court in which the action is taken, or, where the rules do not so provide, served on such persons and given in such manner as is directed by a judge of the court.

(5)A court in which an action has been taken under this section on behalf of a reciprocating State may, after affording all persons that it considers to have an interest in the action a reasonable opportunity to be heard, make an order for the recovery of the property in respect of which the action has been taken or any other order sufficient to ensure the return of the property to the reciprocating State, where the court is satisfied that the property has been illegally imported into Canada by virtue of subsection (2) and that the amount fixed under subsection (6), if any, has been paid to or for the benefit of the person, institution or public authority referred to in that subsection.

(6)Where any person, institution or public authority establishes to the satisfaction of the court in which an action under this section is being considered that the person, institution or public authority

(a)is a bona fide purchaser for value of the property in respect of which the action has been taken and had no knowledge at the time the property was purchased by him or it that the property had been illegally exported from the reciprocating State on whose behalf the action has been taken, or

(b)has a valid title to the property in respect of which the action has been taken and had no knowledge at the time such title was acquired that the property had been illegally exported from the reciprocating State on whose behalf the action has been taken,

the court may fix such amount to be paid as compensation by the reciprocating State to that person, institution or public authority as the court considers just in the circumstances.

(7)The court may, at any time in the course of an action under this section, order that the property in respect of which the action has been taken be turned over to the Minister for safe-keeping and conservation pending final disposition of the action.

(8)The Minister shall, on receipt of a copy of an order of a court made under subsection (5), issue a permit authorizing any person authorized by the reciprocating State on behalf of which the action was taken to export the property in respect of which the order was made to that State.

(9)Section 39 of the Federal Courts Act does not apply in respect of any action taken under this section.

Designation of Cultural Property

38Designation of cultural property#

For the purposes of article 1 of the Convention on the means of prohibiting and preventing the illicit import, export and transfer of ownership of cultural property, any object included in the Control List is hereby designated by Canada as being of importance for archaeology, prehistory, history, literature, art or science.^note

Regulations

39Regulations#

The Governor in Council, on the recommendation of the Minister and the Minister of Foreign Affairs, may make regulations

(a)prescribing the information, documentation and undertakings to be furnished by applicants for permits and certificates under this Act, the procedures to be followed in applying for and in issuing those permits and certificates, the terms and conditions applicable to them and the duration of the permits;

(b)prescribing the circumstances in which information may be required from persons to whom permits have been issued under this Act and the type of information that may be so required;

(c)prescribing the purposes for which an object may be removed from Canada for a limited period of time for the purpose of paragraph 7(c) and the length of time for which it may be so removed; and

(d)prescribing classes of manuscripts, original documents, archives, photographic positives and negatives, films and sound recordings for the purpose of section 14.

^note

Offences and Punishment

40Export or attempt to export#

No person shall export or attempt to export from Canada any object included in the Control List except under the authority of and in accordance with a permit issued under this Act.^note

41No transfer of permits#

No person who is authorized under a permit issued under this Act to export an object from Canada shall transfer the permit to or allow it to be used by a person who is not so authorized.^note

42False information#

No person shall wilfully furnish any false or misleading information or knowingly make any misrepresentation

(a)in an application for a permit under this Act;

(b)for the purpose of procuring the issue of a permit under this Act; or

(c)in connection with the use of a permit issued under this Act or the disposition of any object to which such permit relates.

^note

43Import or attempt to import foreign cultural property#

No person shall import or attempt to import into Canada any property that it is illegal to import into Canada under subsection 37(2).^note

44Export or attempt to export#

(1)No person shall export or attempt to export from Canada any property in respect of which an action has been instituted under subsection 37(3) while the action is being considered.

(2)No person shall export or attempt to export from Canada any property in respect of which an order has been made under subsection 37(5) except under the authority of and in accordance with a permit issued by the Minister under subsection 37(8).

^note

45Offences and punishment#

(1)Every person who contravenes any of the provisions of subsection 36.1(2) and sections 40 to 44 is guilty of an offence and liable

(a)on summary conviction to a fine not exceeding five thousand dollars or to imprisonment for a term not exceeding twelve months or to both; or

(b)on conviction on indictment to a fine not exceeding twenty-five thousand dollars or to imprisonment for a term not exceeding five years or to both.

(2)A prosecution under paragraph (1)(a) may be instituted at any time within but not later than three years after the time when the subject-matter of the complaint arose.

^note

46Officers, etc., of corporations#

Where a corporation commits an offence under this Act, any officer, director or agent of the corporation who directed, authorized, assented to, acquiesced in or participated in the commission of the offence is a party to and guilty of the offence and is liable on summary conviction or on conviction on indictment to the punishment provided for the offence whether or not the corporation has been prosecuted or convicted.^note

47Venue#

Any proceedings in respect of an offence under this Act may be instituted, tried or determined at the place in Canada where the offence was committed or at the place in Canada in which the person charged with the offence is, resides or has an office or place of business at the time of institution of the proceedings.^note

48Evidence#

(1)The original or a copy of a bill of lading, customs document, commercial invoice or other document (in this section called a “shipping document”) is admissible in evidence in any prosecution under this Act in relation to the sending or shipping of an object where it appears from the shipping document that

(a)the object was sent or shipped from Canada or came into Canada;

(b)a person, as shipper, consignor or consignee, sent or shipped the object from Canada or brought the object into Canada; or

(c)the object was sent or shipped to a particular destination or person.

(2)In the absence of evidence to the contrary, a shipping document that is admissible in evidence under subsection (1) is proof of any of the facts set out in paragraph (1)(a), (b) or (c) that appear from the shipping document.

^note

General

49Other lawful obligations#

An export permit or other permit to export issued under this Act does not affect the obligation of any person to obtain any licence, permit or certificate to export that may be required under any other law or to pay any tax, duty, toll or other sum required by any law to be paid in respect of the export of any goods.^note

50Customs officers’ duties#

An officer, as defined in the Customs Act, before permitting the export or import of any object that the officer has reason to suspect is being exported or imported in contravention of any of the provisions of this Act or the regulations, shall satisfy himself that the exporter or importer has not contravened any of the provisions of this Act or the regulations and that all requirements thereof have been complied with in respect of that object.^note

51Application of powers under the Customs Act#

All officers, as defined in the Customs Act, have, with respect to any object to which this Act applies, all the powers they have under the Customs Act with respect to the export or import of goods and all the provisions of the Customs Act and regulations thereunder respecting search, detention, forfeiture and condemnation apply, with such modifications as the circumstances require,

(a)to any objects tendered for export or import, exported or imported, or otherwise dealt with contrary to the provisions of this Act and the regulations; and

(b)to all documents relating to objects described in paragraph (a).

^note

52Report to Parliament#

As soon as practicable after receiving, pursuant to section 34, the report of the Chairperson of the Review Board, the Minister shall prepare and lay before Parliament a report of the operations under this Act for the fiscal year to which the report of the Chairperson relates and shall include therewith the report of the Chairperson.^note

Article 1 of the Convention for the Protection of Cultural Property in the Event of Armed Conflict Done at the Hague on May 14, 1954 (Subsection 36.1(1))

Definition of Cultural PropertyFor the purposes of the present Convention, the term cultural property shall cover, irrespective of origin or ownership:(a) movable or immovable property of great importance to the cultural heritage of every people, such as monuments of architecture, art or history, whether religious or secular; archaeological sites; groups of buildings which, as a whole, are of historical or artistic interest; works of art; manuscripts, books and other objects of artistic, historical or archaeological interest; as well as scientific collections and important collections of books or archives or of reproductions of the property defined above;(b) buildings whose main and effective purpose is to preserve or exhibit the movable cultural property defined in subparagraph (a) such as museums, large libraries and depositories of archives, and refuges intended to shelter, in the event of armed conflict, the movable cultural property defined in subparagraph (a);(c) centres containing a large amount of cultural property as defined in subparagraphs (a) and (b), to be known as “centres containing monuments”.

Related provisions

— 1991, c. 49, s. 216(2)Subsection (1) is applicable after December 11, 1988, except that, in respect of gifts made before February 21, 1990, paragraph 20(c) of the said Act, as enacted by subsection (1), shall be read without reference to the expression “and subsection 118.1(10)”. — 1991, c. 49, s. 217(2)Subsection (1) is applicable after February 20, 1990. — 1991, c. 49, ss. 218(3), (4)Subsection (1) is applicable after December 11, 1988, except that, in respect of gifts made before February 21, 1990, subsection 32(1) of the said Act, as enacted by subsection (1), shall be read without reference to the expression “and a determination by the Review Board of the fair market value of the object”.Subsection (2) is applicable with respect to gifts made after February 20, 1990. — 1991, c. 49, s. 219(2)Subsection 33(1) of the said Act, as enacted by subsection (1), is applicable after February 20, 1990. — 1995, c. 38, ss. 8(1) to (3)A person who, before the day on which this section comes into force, has irrevocably disposed of, to a designated institution or public authority, an object, the fair market value of which was determined or redetermined by the Canadian Cultural Property Export Review Board pursuant to section 32 of the Cultural Property Export and Import Act between January 1, 1992 and the day on which this section comes into force, may, within six months after the day on which this section comes into force, appeal the determination or redetermination to the Tax Court of Canada.A person who, within six months after the day on which this section comes into force, irrevocably disposes of, to a designated institution or public authority, an object, the fair market value of which was determined or redetermined by the Canadian Cultural Property Export Review Board pursuant to section 32 of the Cultural Property Export and Import Act between January 1, 1992 and the day on which this section comes into force, may, within six months after the day of the disposition, appeal the determination or redetermination to the Tax Court of Canada.Subsections 33(2) and 33.1(2) and section 33.2 of the Cultural Property Export and Import Act, as enacted by section 2 of this Act, apply, with such modifications as the circumstances require, in respect of an appeal under subsection (1) or (2).

Federal laws of Canada reproduced under the Reproduction of Federal Law Order (SI/97-5); not the official version. Source: Justice Laws Website.