Opinion: The return of a Nazi-looted painting highlights the problems with Canada’s art restitution policy

Still life with flowers, c. 1660.


Sara Angel is the founder and executive director of the Art Canada Institute. Her doctoral thesis dealt with Max Stern’s reimbursement claims. She teaches Nazi-era art crime and art restitution at York University, where she is an associate professor.

When Holocaust survivor, author, and political activist Elie Wiesel accepted the Nobel Peace Prize in 1986, he asked the world never to be silent in the face of injustice. Now, in a week on International Holocaust Remembrance Day, Canada needs to pay tribute to Mr. Wiesel’s words and consider how we could work harder to follow them.

Recently, The Globe and Mail brought news of questionable circumstances related to the return by the Art Gallery of Ontario of Still Life with Flowers, a 17th century oil painting by Jan van Kessel, to the heirs of Martha and Dagobert David, former Düsseldorf residents, who have lost painting under National Socialist coercion.

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While the AGO has undoubtedly done the right thing to return art looted by the Nazis, the process that followed has exposed Canada’s inadequate approach to restitution claims processing and our insufficient attention to the issue.

From 1933 to 1945, in the predatory cultural policy of the Third Reich, about 20 percent of European art was looted by the Nazis – of which, according to Michael Bazyler, Professor of Law and Human Rights at Chapman, about 100,000 works remain hidden in private and public collections. Marc Masurovsky, co-founder of the Washington-based Holocaust Art Restitution Project, estimates that Canada’s share of this lost art collection is “likely several thousand objects.”

However, we do not have a clear, government-set policy for dealing with looted art if it is found, and we also lack a solid commitment to identifying such works. In Germany, Austria, France, the Netherlands and England, no property looted by the Nazis found in a government-funded art museum will be returned without steps that include a thorough investigation of the work’s provenance by a party other than its applicant was carried out. Extensive research that is made publicly available is heard by a panel of experts who make a recommendation to a cultural officer who will weigh all sides of a case and decide how best to proceed. Often times, the process can take years.

In contrast, Canada’s lack of refund policy resulted in the public only learning about still lifes of flowers through a press release issued by the gallery after the AGO deactivated the painting last November. The lack of a Canadian restitution claim process enabled the AGO to make a decision based on evidence presented by Anne Webber, a UK based representative of the David family. Within a few months of contacting the AGO, the painting left the country without public control.

While the answer of what to do with works of art lost under National Socialist coercion seems obvious to the layman – give it back! – It’s not that simple. As Holocaust redress attorney Nicholas M. O’Donnell explains in his book, A Tragic Fate: Law and Ethics in the Struggle for Art Looted by the Nazis, cases that often seem simple are seldom straightforward. Facts are usually unsolvable, gray, complex and ethically uncertain.

For example, the buyers of art liquidated by Jews under Nazi coercion were often other Jews – who in the chaos of Nazi Germany viewed art as an asset that could legitimately be exported when cash was not possible. The matter becomes even more complicated when you consider that countless art sales from the Holocaust era were not recorded and that all records were lost in the course of and after the persecution by the Nazis.

On the occasion of the November press release on Still Life with Flowers, the AGO published a brief history of the painting on its website, noting that the work belonged to the famous German-born Canadian art dealer Max Stern in 1937, who established himself in Nazi Europe after fleeing Montreal again as one of the country’s most admired cultural leaders, representing such revered names as Emily Carr and Jean-Paul Riopelle.

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Max Stern and his wife Iris sit on a ship and watch an advertisement showing works of art that they were chasing from the Stern collection lost during the Nazi era. 1952.

Concordia University via AP

Before he fled Germany, on the orders of the Gestapo, Stern sold an inventory of hundreds of paintings at fire prices after he had lost his license to trade in art in his Düsseldorf gallery because he was Jewish. We know from Stern’s customer records (now in the National Gallery in Ottawa) that Martha and Dagobert David bought most of their collection from him. This fact is further documented in a 2001 report to the House of Commons drawn up after the David heirs successfully sought compensation for Jan Griffier the Elder’s View of Hampton Court Palace painting that later became part of the Tate Gallery collection was The family lost it under National Socialist pressure.

Stern’s heirs, represented by the Montreal-based Max Stern Art Restitution Project, one of the world’s foremost voices in restoring art looted by Nazis, first learned of the origins of the still life with flowers on the Art Gallery of Ontario website. The project manager, Clarence Epstein, wrote to the AGO and asked why the gallery had not asked “for more information about the origins of the Stern gallery from 1937”. The AGO replied that there was no need to contact Mr. Stern’s heirs or check his records in the National Gallery of Canada.

In his letter to the AGO, Mr Epstein also stated that prevailing practices require that the first person to lose an object as a result of Nazi persecution – in this case, Mr Stern, who, according to the AGO website, sent the painting to the AGO sold the David family under Nazi coercion – is usually considered the main applicant. In many reimbursement cases, co-applicants also emerge when the facts are not certain.

In response to Mr. Epstein, the AGO removed their recognition of Mr. Stern’s ownership of the painting from their website records. The gallery then stated that the assignment to Max Stern had been a mistake. So far, no reason has been given as to how the bug occurred – and no facts have been publicly released about the evidence that convinced the AGO to restore still lifes with flowers within months of receiving the refund claim last March.

While the AGO has a solid argument in favor of disabling still life with flowers for the David heirs, it is Epstein’s objection, how the gallery struck Max Stern from history, despite significant evidence documenting the David Stern relationship . “The Nazis worked to erase the entire history of the Jews from the German cultural landscape,” says Epstein. “Restitutions, carried out with rigor and public transparency, provide an opportunity to correct history that has been desecrated by the most hideous regime of the 20th century.”

The AGO practice is in line with Canada’s extremely slow and weak response to the problem of Nazi-looted art restitution. In 1998 Canada, along with 43 other countries, signed the Washington Conference Principles on Art Seized by the Nazis, pledging to develop a national process to restore looted works and address claims with integrity.

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While museums, including the AGO, set up committees to review works of art created before 1946, acquired after 1932, and changed hands between 1932 and 1946, only four works of Nazi-looted art from public collections in Canada have been returned to history. This includes Still Life with Flowers, a painting whose tainted past was not discovered by the AGO despite having been in its collection since 1995.

It was only in 2013 that the Canadian Art Museum Directors Organization (CAMDO) started a project with six galleries to identify gaps in origin. While exemplary research was being carried out at the National Gallery of Canada, the $ 191,000 funding from Canadian Heritage was insufficient to complete extensive work on the subject across the country. It wasn’t until 2017 that CAMDO published guidelines for dealing with art looted by Nazis – but the recommendations serve neither as public order nor as legislation.

There is no legal obligation for a gallery to return a work of art looted by Nazis – and there is also no established protocol under which our public institutions are obliged to act consistently and transparently when receiving a refund claim. Until this situation changes, the words of Mr. Weisel say: “We are guilty, we are accomplices” because we could not stop the injustices against the victims of the Holocaust. We allow our cultural institutions to act with the best of intentions – but overlook important evidence, a reasonable process, and an accurate account of the past.

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