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INTERNATIONAL CENTRE FOR SETTLEMENT OF
INVESTMENT DISPUTES

CASE NO. ARB/23/5

RUBY RIVER CAPITAL LLC

Claimant

VS.

CANADA

Respondent

REPLY ON MERITS AND COUNTER-MEMORIAL ON
JURISDICTION

18 April 2025

Before:

Ms Carole Malinvaud (President)
Mr Barton Legum
Prof Zachary Douglas KC

LALIVE

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DEFINED TERMS AND ABBREVIATIONS

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1 INTRODUCTION

1 This Reply on the Merits and Counter-Memorial on Jurisdiction (the “Reply”) is filed in response to the Respondent’s Counter-Memorial on the Merits and Memorial on Jurisdiction dated 15 July 2024 (the “Counter-Memorial”), pursuant to Rule 31(1)(c) of the ICSID Rules, paragraph 14.1 of Procedural Order No. 1 and the Tribunal’s direction dated 21 March 2025.

2 The Claimant’s project entailed a competitive, innovative, carbon-neutral LNG facility on the bank of the Saguenay River in Québec to be operated by GNL Québec, Inc. (“GNLQ”) (the “GNLQ Project”) and a carbon-neutral, 780-km natural gas pipeline from eastern Ontario to the GNLQ facility to be operated by Gazoduq Inc. (“Gazoduq”) (the “Gazoduq Project”, with the GNLQ Project, the “Symbio Project”).

3 Had the Symbio Project not been brought to a halt by the Respondent’s wrongful actions, it would have confirmed Canada’s leading role as a reliable source of sustainable energy, brought substantial economic benefits to Québec and to Canada, and represented a significant pan-Canadian industrial collaboration. It would have bolstered the country’s export capacity, allowing it to support its European allies seeking to move away from Russian gas and diversify its energy exports.

4 Understandably, the Symbio Project generated significant enthusiasm from Government officials at the local (Saguenay), provincial (Québec) and federal level, even before the environmental assessment (“EA”) process began. These were not mere expressions of interest; they were strong words of encouragement that translated into concrete actions taken by various Québec and federal ministries and agencies to advance the Project. This support not only encouraged Symbio to pursue its investment, but also reinforced the Claimant’s legitimate expectation that the Symbio Project would be assessed in a fair, predictable and unbiased manner throughout. This expectation was not met.

5 The decisions by the Québec and federal authorities not to allow the GNLQ Project to proceed were inherently unlawful. They were also the result of a series of wrongful acts and omissions, including direct political

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interference, that compromised the integrity of the EA process for the GNLQ Project, at the outset in 2015 and throughout.

6 In its Counter-Memorial, the Respondent hardly disputes the facts as presented by the Claimant, but contends that its conduct was permissible under federal and Québec law to (allegedly) protect the environment, and, more specifically, to comply with Canada’s objectives to reduce GHG emissions and protect endangered species.

7 This case, however, is not about a State’s right to regulate to protect the environment and lawfully exercising its discretion to do so. Nor does it concern a disgruntled investor seeking to overturn a lawful but adverse regulatory decision. This case is about a State abusing its powers in terminating a project for reasons that were neither lawful nor valid.

8 As the evidence shows, the GNLQ Project was in line with both federal and Québec environmental policies. However, along with the Gazoduq Project, it became the victim of a process tainted by unlawful, improper and arbitrary actions and considerations on the part of both Québec and federal authorities. This abusive conduct was the direct result of breaches of federal and Québec environmental law, as well as Canadian constitutional law.

9 Environmental law inherently requires balancing different interests. This is particularly evident in the EA of large industrial projects, which requires careful consideration of both economic development and environmental objectives. As such, the process can become polarising, leaving decision-makers exposed to accusations of bias and arbitrariness by both proponents of and opponents to a project. This is why modern environmental laws provide for comprehensive, predictable and transparent frameworks within which EAs are carried out.

10 Canadian law is no exception in this regard. It provides two key safeguards to ensure that the EA of a project is conducted properly and fairly: first, the mandatory allocation or coordination of the EA process, to reflect the respective environmental responsibilities of the federal State and the provinces (here, Québec); and second, a mandatory early delineation of the scope of the EA, which sets the limits within which State authorities may make recommendations and decisions regarding the project. In this case,

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the Respondent violated both of those safeguards, resulting in decisions by both the Québec and Federal Governments that were not only unlawful, but also arbitrary and improper.

11 At the outset, the EA process of the GNLQ Project took a wrong turn. Between November 2015 and January 2016, the Québec Ministère de l’Environnement et de la Lutte contre le Changement Climatique (the “MELCC”) and the federal Canadian Environmental Assessment Agency (the “Agency”) failed to ensure that there would be, either (i) a single federal assessment led by the Agency, since the GNLQ Project largely fell within federal jurisdiction, or (ii) a single joint assessment, carried out by the Agency and the MELCC, pursuant to the Canada-Québec Agreement on Environmental Assessment Cooperation, as renewed on 25 October 2010 (the “Canada-Québec Agreement”).

12 Instead, the MELCC and the Agency unlawfully opted for two separate EAs. By doing so, they removed the first safeguard in the EA legal framework. Indeed, the lack of coordination and collaboration between the Québec and federal authorities not only resulted in two uncoordinated EA processes, and two (wrongful) decisions, it also paved the way for further irregularities.

13 In December 2015, the MELCC issued its Directive pour le projet Energie Saguenay de construction d'un complexe de liquéfaction de gaz naturel sur le territoire de la ville de Saguenay par GNL Québec Inc., under the Québec Environment Quality Act (“EQA”) (the “MELCC Directive”). In March 2016, the Agency issued its own Guidelines for the Preparation of an Environmental Impact Statement under the Canadian Environmental Assessment Act 2012 (“CEAA 2012”) (the “EIS Guidelines”). These comprehensive, legally binding documents defined the scope of the provincial Québec EA and the federal EA, establishing clear boundaries within which recommendations and decisions could be made. However, the Québec and federal authorities also ignored this second safeguard.

14 The MELCC and the Agency indeed exceeded their powers, not only by requesting that GNLQ provide information and assurances on matters that were outside their respective jurisdictions, but also by drawing conclusions and making recommendations to the Québec and Federal Governments on

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matters that went beyond the scope of the MELCC Directive and the EIS Guidelines.

15 The unlawful dual track in the GNLQ Project EA process further enabled unlawful governmental interference in the provincial EA, which then tainted the federal EA. This could not have occurred had the EA process been run as a single federal assessment or as a joint assessment.

16 The Québec Government’s interference with the provincial EA process was fatal to the GNLQ Project, as it included:

i) imposing at the eleventh hour, in March 2021, three new and purposely unrealistic “core criteria” for the approval of the GNLQ Project, including an astonishing requirement to prove that the project would lead to a reduction in global GHG emissions;

ii) effectively deciding already then to reject the GNLQ Project, thus by-passing the provincial EA process that was not yet complete, and instead forcing the MELCC team in charge into a different course, to secure an unjustified recommendation not to approve the project; and eventually

iii) deciding formally, on 21 July 2021, not to approve the GNLQ Project, on those same new “core” grounds, as well as others, which were either outside Québec’s jurisdiction or outside the scope of the MELCC Directive, or both.

17 That decision by the Québec Government, in turn led the Federal Government to follow suit and act improperly by:

i) announcing already in September 2021 that the GNLQ Project would not go forward, while the federal EA, led by the Agency, was still ongoing, thereby prejudging its outcome;

ii) then relying on grounds that were outside the scope of the EIS Guidelines, in order to:

- have the Agency change its course and invoke grounds similar to the three “core criteria” imposed by the Québec Government in March 2021 and reflected in its decision of 21 July 2021;

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- have the federal Minister of Environment refer the GNLQ Project to the Governor in Council (the “federal Cabinet”) on 9 December 2021 for a decision, on the (wrong) basis that the project would allegedly cause significant adverse environmental effects that could not be mitigated; and

- decide, in turn, on 7 February 2022, that those allegedly adverse environmental effects were not justified in the circumstances, effectively rejecting the GNLQ Project.

18 The Québec and federal authorities’ misconduct is fully borne out by the contemporaneous evidence on record, including documents that the Respondent produced in document production at the Claimant’s request, that the Claimant suspected existed but had never seen prior to this arbitration. It is also supported by inferences that can be drawn from documents that the Respondent has identified as existing, and described, but refused to produce, in violation of the Tribunal’s orders. The Claimant has identified throughout this Reply where such adverse inferences should be drawn.

19 In its Counter-Memorial, the Respondent struggles to find legitimate justifications for these events, and instead seeks to downplay their significance, offering excuses that find no support on the facts and under Canadian law.

20 As a matter of Canadian constitutional law, including the Canadian doctrine of paramountcy, the Respondent’s proposition that Québec authorities were entitled to impose their own EA of the GNLQ Project is wrong. This is demonstrated by the Claimant’s experts, Me Christine Duchaine and Mr Rodney Northey, both of whom have over 30 years of experience in advising and representing clients on EA-related matters at the Québec and federal levels, respectively.

21 Given the location of the GNLQ Project on federal land and the overwhelming number of matters that fell within exclusive federal jurisdiction, the GNLQ Project should have been subject only to a single federal assessment. Québec authorities had no reason to participate in the EA, let alone initiate their own provincial EA.

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22 To the extent that Québec considered the project also to fall, in part, within its EA responsibility, the MELCC and the Agency were required by law to collaborate and conduct a joint assessment under the Canada-Québec Agreement. Documents produced by the Respondent in document production confirm that, indeed, this was the MELCC’s and the Agency’s understanding at the time, before they inexplicably changed tack and went their separate, uncoordinated ways.

23 While they proceeded separately, the scope of each EA was in any event squarely limited by the MELCC Directive and the Agency’s EIS Guidelines. Both Me Duchaine and Mr Northey confirm that these documents were legally binding, contrary to the assertions of the Respondent and its experts – neither of whom has the requisite experience to opine on the matter. Again, as a matter of law and due process, any recommendation by the MELCC and the Agency, and any ground for any decision by the Québec or Federal Governments as part of the EA processes, that fell outside the scope of the MELCC Directive and the EIS Guidelines, was illegal.

24 On the facts, this is precisely what happened. In the face of political interference, the MELCC and the Agency each made recommendations that fell outside the scope of their respective EAs, which in turn led the Québec and Federal Governments to invoke grounds for their decisions that were also illegal.

25 At the Québec level, the MELCC’s deviation from the lawful EA process was directly dictated by the Québec Government. This also explains why the Respondent now seeks to read into the MELCC Directive the three new “core criteria” imposed by the Québec Minister of Environment on GNLQ in the last months of an EA process that took several years. The Respondent is effectively trying to fit a square peg into a round hole – and trying to do so retroactively. Again, the above is clear from the documents produced by the Respondent in document production, and also from those it has listed but refused to produce.

26 At the federal level, the authorities fared no better. The Federal Government arbitrarily followed suit in deciding to refuse the GNLQ Project, in the context of the 2021 Canadian federal elections. It announced it already in September 2021, well before the Agency’s own EA was

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complete, thereby prejudging its outcome. That left the Agency to finalise a report with recommendations that would support the Federal Government’s desired outcome. To do so, the Agency had to rely on grounds that not only fell outside, but had been explicitly excluded for consideration by, the EIS Guidelines. By relying on these grounds, the Federal Government’s decision to reject the GNLQ Project was illegal.

27 It is therefore no surprise that, substantively, none of the grounds invoked by the Québec and federal authorities to reject the GNLQ Project were in any way justified, including scientifically. This too is borne out by the evidence.

28 In light of these damning facts, the Respondent’s approach on the merits of the Claimant’s claims is equally unsurprising

29 The Respondent first attempts to set an artificially high threshold for a breach of the customary international law minimum standard of treatment under Article 1105 NAFTA, that is unsupported by Article 1105 or by case law. On the facts of this case, Canada’s conduct was discriminatory and arbitrary and violated due process as well as the Claimant’s legitimate expectations, in breach of Article 1105 NAFTA.

30 Canada’s conduct also failed to accord the GNLQ Project the same standards of treatment as that accorded to comparable projects before, simultaneously to, and after the facts in dispute in the present case, in breach of Articles 1102 and 1103 NAFTA. While the Respondent seeks to downplay them, those differences of treatment are glaring, including (i) in the choice of two separate, uncoordinated EAs for the GNLQ Project, as opposed to either a single federal assessment or a joint assessment; and (ii) in the much stricter standards imposed on the GNLQ Project regarding GHG emissions and the protection of beluga whales.

31 As for the Respondent’s defences to the Claimant’s expropriation claim under Article 1110 NAFTA they fail as matter of law. The Claimant had an investment to be expropriated within the meaning of the NAFTA and the doctrine of police powers invoked by the Respondent does not apply.

32 Finally, and contrary to the contentions of the Centre québecois de droit de l’environnement (“CQDE”) in its amicus curiae submission, the

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Respondent’s conduct cannot be justified on the grounds that the Québec and federal authorities legitimately applied the precautionary principle in reaching their decisions. That principle was, rightly, not invoked by the Respondent either at the time or in its submissions in this arbitration.

33 On quantum, there can be no doubt that the Respondent’s breaches of the NAFTA have caused the Claimant and Symbio to lose the fair market value of the Symbio Project as at 21 July 2021. In this regard, the Respondent’s argument that the Symbio Project was not viable and in any event could not have been completed is disingenuous and untenable in light of the evidence on record:

- First, had the Symbio Project been doomed to fail even without the Respondent’s NAFTA breaches, the Québec Government and other institutional investors would not have offered to invest in Symbio to support the Project, following extensive due diligence, let alone on the basis of a pre-money valuation of [Redacted] in 2019-2020.

- Second, although the Gazoduq Project was still part-way through its own approval process at the federal and Québec levels, there is no reason why, but for the Québec and Federal Governments’ decisions to put an end to the GNLQ Project, the Gazoduq Project would not have been completed in accordance with Gazoduq’s schedule.

34 Applying the criteria used by other investment tribunals, the Claimant adopts the DCF methodology as the most sound and appropriate method to determine the market value of the Symbio Project and thus quantify the Claimant’s loss.

35 In adjusting the fair market value of the Symbio Project submitted with this Reply, the Claimant’s quantum expert, Secretariat, now takes 21 July 2021 as the valuation date, i.e., the date on which the Québec Government refused to authorise the GNLQ Project. Secretariat calculates the fair market value of the Symbio Project as of that date at USD 588 million, a value that factors in contemporaneous transactions in the Symbio Project, as well as its stage of development at the time.

36 Lastly, in this Reply, the Claimant addresses the Respondent’s belated and opportunistic new objection to the Tribunal’s jurisdiction on the grounds that the Respondent’s wrongful measures occurred after the termination of

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the NAFTA on 30 June 2020, such that they are not covered by Annex 14-C of the USMCA. That objection too must fail.

37 First, the Claimant’s claims arise out of a series of acts and omissions starting in December 2015, when the MELCC decided to proceed with its own EA in breach of Canadian law, and continuing through to the Québec and Federal Governments’ decisions of July 2021 and February 2022. In aggregate, these acts and omissions constitute a composite act that amounts to a NAFTA breach extending from 2015 until 2022. The claims thus squarely fall within the Tribunal’s jurisdiction.

38 Second and in any event, the Respondent’s objection is unsupported by the ordinary meaning of the terms of Annex 14-C. Indeed, had the Respondent genuinely believed in this defence, it would have raised it at the outset in this arbitration to seek to bifurcate the proceedings, and also at the outset in other NAFTA legacy cases. It never did.

39 This Reply is structured as follows:

- Section 2 sets out the relevant facts and addresses the Respondent’s allegations in its Counter-Memorial, setting the record straight on a number of points including in the light of the documents produced, and not produced, in document production.

- Section 3 responds to the Respondent’s unfounded jurisdictional objections.

- Sections 4 and 5 address the Respondent’s defences on the merits of the Claimant’s claims for breach of the NAFTA and on the compensation to which the Claimant is entitled.

- Section 6 sets out the Claimant’s request for relief.

40 This Reply is accompanied by:

- the second witness statement of Mr Jim Illich (“CWS-1 (Second)”) submitted with new exhibits JI-0122 to JI-0197;

- the second witness statement of Mr Vivek Bidwai (“CWS-2 (Second)”) submitted with new exhibits VB-0122 to VB-0271;

- the second witness statement of Mr Tony Le Verger (“CWS-3 (Second)”) submitted with new exhibits TLV-0099 to TLV-0181;

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- the second witness statement of Mr Keith Bainbridge (“CWS-4 (Second)”) submitted with new exhibits KB-0022 to KB-0025;

- the second witness statement of Mr Ron Brintnell (“CWS-5 (Second)”) submitted with new exhibits RB-0021 to RB-0040;

- the second witness statement of Mr Denis Roux (“CWS-6 (Second)”) submitted with new exhibits DR-0062 to DR-0104;

- the first witness statement of Ms Adrienne Menzies (“CWS-7”) submitted with exhibits AM-0001 to AM-0012;

- the first witness statement of Mr Alex Krolick (“CWS-8”) submitted with exhibits AK-0001 to AK-0034;

- the second expert report of Me Christine Duchaine (“CER-1 (Second)”) submitted with new exhibits CD-0214 to CD-0339;

- the second expert report of Mr Rodney Northey (“CER-2 (Second)) submitted with new exhibits RN-0147 to RN-0204;

- the second expert report of Secretariat (“CER-3 (Second)) submitted with new exhibits SEC-0348 to SEC-0498;

- factual exhibits C-0438 to C-0628; and,

- legal authorities CL-280 to CL-355.

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2 FACTUAL BACKGROUND

41 In its Memorial on Jurisdiction and Merits, dated 21 November 2023 (the “Memorial”), the Claimant set out the background to its investment in Canada. Specifically, the Claimant showed that the Symbio Project was part of a new generation of large private infrastructure energy projects, aiming to contribute to the energy transition.¹ Furthermore, the Claimant explained that the Symbio Project was, by design, in line with both the Québec and Canadian Government’s policies to use Canada’s considerable natural gas resources as a transition energy while developing a low-emission facility,² and to offer the Saguenay region an economic development opportunity, thanks to a unique use of the Saguenay River to access maritime commercial routes.³

42 During their development, the GNLQ and Gazoduq Projects consistently demonstrated their technical, economic, and environmental feasibility through extensive due diligence and engagement with key consultants.⁴ Initially, GNLQ secured an export license from the National Energy Board (“NEB”), while Gazoduq pursued the development of a natural gas transmission line from Ontario to Québec.⁵ Sustained negotiations with natural gas producers ensured a reliable supply of low-cost Western Canadian gas.⁶ Meanwhile, the Claimant’s team developed the Gazoduq Project and began to lay the foundations for its future activity by securing supply of natural gas and clients.⁷

43 The GNLQ Project received strong support from local and political stakeholders, including the Québec Government, who even proposed to

¹ Memorial, p. 11 et seq. (s. II(A)-(B)). ↩
² Memorial, p. 13 et seq. (paras. 28-29, 162-163). ↩
³ Memorial, p. 22 (paras. 50-51). ↩
⁴ Memorial, p. 25 et seq. (s. II(C)-(F). ↩
⁵ Memorial, p. 29 et seq. (s. II(G)-(H)). ↩
⁶ Memorial, p. 17 et seq. (s. II(C)-(G)). ↩
⁷ Memorial, p. 30 et seq. (s. II(I)-(J)). ↩

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invest in the GNLQ Project.⁸ The project team was also attentive to the concerns of First Nations and local communities.⁹

44 Between 2014 and 2021, Symbio raised approximately USD 125 million for the Project from external investors, over four rounds of financing. During those financing rounds, the Respondent itself validated the viability of the Project. Specifically, the Québec Government, acting through its public investment corporation, Investissement Québec (“IQ”), offered to invest [Redacted] in the third and fourth rounds respectively. After months of due diligence, these offers [Redacted] only for the Québec Government to decide at the eleventh hour in both 2017 and 2020 not to approve the investment.¹⁰

45 In the Memorial, the Claimant also described the EA process of the GNLQ Project, including the submission by GNLQ of its comprehensive Environmental Impact Statement (“EIS”).¹¹ The EIS was designed to comply with the requirements of the MELCC Directive and the EIS Guidelines, issued by the MELCC and the Agency respectively, at the beginning of the EA. With the support of Mr Northey’s and Me Duchaine’s expert opinion, the Claimant established that these documents were crucial to safeguard the integrity of the process as, (i) they defined the four corners within which the MELCC, the Agency and the Federal and Québec Governments could exercise their discretion and (ii) they were legally binding upon federal and Québec authorities.¹²

46 Despite the Claimant’s efforts, this process was however riddled with irregularities, including:

- the MELCC’s and the Agency’s failure to cooperate at the outset to hold a single federal EA led by the Agency, or a joint assessment pursuant to the Canada-Québec Agreement on Environmental

⁸ Memorial, p. 41 et seq. (ss. II(K)-(O), II(S)). ↩
⁹ Memorial, p. 41 et seq. (s. II(L)-(M)). ↩
¹⁰ Memorial, p. 51 et seq. (paras. 121-139), p. 69 et seq. (paras. 195-199). ↩
¹¹ Memorial, p. 54 et seq. (s. II(P)-(R)). See also GNLQ EIS (January 2019), at Exhibit C-0043-FRA. ↩
¹² Memorial, p. 55 et seq. (paras. 143-148). ↩

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Assessment Cooperation dated 2004 and renewed on 25 October 2010 Canada-Québec Agreement, subjecting GNLQ to two uncoordinated processes;¹³

- the conduct by the Commission of the Bureau d’audiences publiques (“BAPE”) of biased hearings following the interference of the Québec Government who sent researchers hostile to the GNLQ Project to represent the Ministère de la Faune, des Forêts et des Parcs (“MFFP”), resulting in a biased report of the Bureau d’audiences publiques sur l’environnement on 24 March 2021 (the “BAPE Report”);

- the late and unexpected imposition by Minister Charette of three new “core criteria” that the GNLQ Project would have to meet to be approved.¹⁴

- the MELCC’s increasingly stringent and arbitrary concerns over GHG emissions and beluga whales from March 2021.¹⁵

47 These irregularities and political interferences led to the Québec Government’s decision not to approve the GNLQ Project, based on unprecedented and discriminatory grounds by Decree 1071-2021 dated 21 July 2021 (the “Decree”).¹⁶

48 Following the Decree, the Federal Government decided to follow suit, despite the federal EA process still ongoing.¹⁷ Based on similarly unlawful and unjustified criteria presented in the Agency’s Environmental Assessment Report dated November 2021 (the “Agency Report”), the federal Minister of Environment found that the GNLQ Project would have unmitigable adverse environmental effects and referred the matter to the federal Cabinet for a decision on whether these effects were justified in the circumstances. Unsurprisingly, the Cabinet considered that this was not the case. The Minister of Environment thus issued a Decision Statement

¹³ Memorial, p. 56 et seq. (paras. 147-151). ↩
¹⁴ Memorial, p. 83 et seq. (s. II(W)). ↩
¹⁵ Memorial, p. 83 et seq. (s. II(W)). ↩
¹⁶ Memorial, p. 97 et seq. (s. II(X)-(Y)). ↩
¹⁷ Memorial, p. 102 et seq. (s. II(Z)). ↩

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pursuant to Article 54 of the CEAA 2012 officially rejecting the GNLQ Project (the “Decision Statement”).

49 However, subsequent discussions revealed that both the Québec and the Federal Governments’ decisions were politically motivated and unrelated to environmental concerns.¹⁸

50 In its Counter-Memorial, the Respondent leaves a large part of the Claimant’s factual presentation unchallenged, but makes a number of ill-founded contentions. Contrary to the Respondent’s allegations:

- the Symbio Project accorded with Canada’s and Québec’s commitments to reduce GHG emissions and efforts to preserve the beluga whales population (Section 2.1);

- as shown by IQ’s own investment offers, the Symbio Project was commercially viable, already before Canada’s breaches of the NAFTA (Section 2.2);

- the federal and Québec authorities were bound to cooperate to conduct a single federal EA led by the Agency, or a joint assessment, and failed to do so (Section 2.3);

- as the Québec and federal authorities proceeded with two separate assessments of the Project, in violation of Canadian constitutional law and practice, both the MELCC and the Agency were bound to carry out their respective assessments within the scope defined by the MELCC Directive and the EIS Guidelines (Section 2.4);

- had the federal and Québec authorities complied with their obligations under Canadian law, the Québec Government would not have been in a position to interfere with the provincial EA process and issue the Decree rejecting the GNLQ Project; the EA process and the Decree would not have been marred with irregularities as they were, including the introduction at the eleventh hour of new requirements for GNLQ to meet, as well as the failure to assess the GNLQ Project in accordance with the criteria set out in the MELCC Directive and the encroachments on federal jurisdiction (Section 2.5);

¹⁸ Memorial, p. 102 et seq. (s. II(AA)-(BB)). ↩

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- in the same vein, the Federal Government would not have prejudged the outcome of the federal EA prior to its completion, leading to a decision affected by fatal deficiencies, relying on grounds falling squarely outside the EIS Guidelines (Section 2.6); and

- by the time the GNLQ Project came to a halt as a result of the Québec and Federal Governments’ wrongful decisions not to approve it, the Gazoduq Project had made significant progress and was already substantially de-risked from a commercial, technical, social acceptability and Indigenous relations perspectives (Section 2.7).

2.1 The Project accorded with Canada’s and Québec’s policy objectives

51 The Respondent does not deny that, as described in the Memorial, the Symbio Project was in line with both the Québec and Canadian Government’s policies on the use of Canada’s considerable natural gas resources as a transition energy,¹⁹ and in offering the Saguenay region an economic development opportunity.²⁰

52 Instead, the Respondent wrongly argues that the Symbio Project was not compatible with Canada’s and Québec’s commitments to reduce GHG emissions (Section 2.1.1) and efforts to preserve the beluga whale population (Section 2.1.2).

2.1.1 The Project accorded with Canada’s policy objectives and commitments to fight climate change

53 In the Memorial, the Claimant established that the Symbio Project was consistent with Canada’s and Québec’s policy and international commitments on energy transition,²¹ including through a self-imposed commitment to making the Project carbon neutral.²² The Claimant also recalled the numerous statements by which Canadian and Québec officials had specifically and consistently endorsed, and actively promoted, LNG as

¹⁹ Memorial, p. 13 et seq. (paras. 28-29) and p. 60 (paras. 162-163). ↩
²⁰ Memorial, p. 22 (paras. 50-51). ↩
²¹ Memorial, p. 13 (para. 28). ↩
²² Memorial, p. 60 (paras. 162-163). ↩

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a transition energy, both prior to and after the rejection of the GNLQ Project.²³

54 In its Counter-Memorial, the Respondent contends that:

- the Project would have been one of the largest GHG emitters in Québec;²⁴

- this would have been contradictory with Canada’s and Québec’s commitment to reduce their GHG emissions;²⁵ and

- the statements of Québec’s and Canada’s officials supporting the use of LNG as a transition energy were nothing more than “des declarations générales désuètes au sujet du GNL”.²⁶

55 The Respondent also highlights in the abstract the importance of fighting climate change,²⁷ and describes at length Canada’s and Québec’s international commitments towards reducing GHG emissions since 1992 and the measures taken in this respect.²⁸

56 However, the Respondent’s position that Québec and Canada had no other choice but to reject the GNLQ Project to comply with their commitments to fight climate change is a pure fabrication.

57 First, Québec’s own experts engaged in the EA of the GNLQ Project consistently concluded that it was in line with Québec’s environmental commitments and targets.²⁹

²³ Memorial, p. 13 et seq. (para. 29). See also Illich I, at Exhibit CWS-1, p. 10 et seq. (s. IV). ↩
²⁴ Counter-Memorial, p. 3 (para. 3). ↩
²⁵ Counter-Memorial, p. 3 (para. 3). ↩
²⁶ Counter-Memorial, p. 259 (para. 652, second bullet point). ↩
²⁷ Counter-Memorial, p. 15 et seq. (paras. 38-40). ↩
²⁸ Counter-Memorial, p. 16 et seq. (paras. 41-55). ↩
²⁹ Compilation of opinions from consultations with ministries and organisations concerning the GNLQ Project (June 2021), at Exhibit C-0032-FRA, p. 48 of the PDF (Direction de l’expertise climatique), p. 54 of the PDF (Direction générale de la réglementation carbone et des données d’émission) p. 59 of the PDF (Direction de la prospective climatique et de l’adaptation); Email correspondence between G. Bélanger (Agency) and M. Duquette (MELCC) from 13 September to 11 October 2019, at Exhibit C-0440-FRA. ↩

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58 As explained by Mr Le Verger in his Second Witness Statement, the Respondent’s approach in the arbitration is biased in that it focuses only on the desired outcome, namely net-zero GHG emissions, rather than consider the means to reach that outcome, namely the energy transition.³⁰ As LNG emits much less GHG than fuel oil or coal, substituting fuel oil and coal with LNG is very much part of the transition towards net-zero, and recognized as such.³¹

59 As Mr Le Verger further explains, this was particularly true for the LNG to be produced by the Project, which benefited from (i) the lowest possible GHG emission levels at the extraction stage in light of Canada’s regulations and investment in relevant technologies, (ii) the use of green hydroelectricity to power both the Gazoduq pipeline and the LNG plant, and (iii) a cold climate rendering the liquefaction process more efficient.³² Furthermore, the Project would have promoted the energy transition locally by offering to supply Canadian LNG to communities and industries in remote areas in Québec in replacement of more polluting fuels in Québec.³³

60 The Respondent’s document production in this arbitration revealed that this was the position of Natural Resources Canada (“NRCan”), the federal department of the Government of Canada responsible for the use and development of natural resources. During an April 2021 meeting with the Ministry of Energy and Natural Resources (“MERN”), as part of the EA of the GNLQ Project, NRCan expressed its opinion as follows:

“Energie Saguenay est un projet qui peut contribuer à la décarbonisation des marchés mondiaux tout en générant des retombées économiques positives pour plusieurs communautés du pays.

La capacité du Canada de réduire les émissions de méthane provenant de la production de gaz naturel (et d'utiliser

³⁰ First Witness Statement of Tony Le Verger dated 21 November 2023, at Exhibit CWS-3, p. 5 (para. 6). ↩
³¹ Le Verger II, at Exhibit CWS-3 (Second), p. 6 (paras. 8-9). ↩
³² Le Verger II, at Exhibit CWS-3 (Second), p. 7 (para. 12). ↩
³³ Le Verger II, at Exhibit CWS-3 (Second), p. 8 (para. 15). ↩

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l'hydroélectricité pour alimenter ses pipelines et ses opérations de GNL) nous permettrait d'offrir aux marchés internationaux l'option du GNL le plus propre au monde pour remplacer le charbon.”³⁴

61 The Respondent’s document production similarly revealed that the Québec Government’s rejection of the Project in July 2021 on the ground that it failed to promote the energy transition was also contradicted by its own, earlier position, as expressed by the Québec Deputy Minister of Energy in a 4 July 2019 note on the GNLQ Project, which stated as follows:

“[I]] est généralement reconnu que le gaz naturel représente une énergie de transition entre les produits pétroliers (qui représentaient 40% du bilan énergétique du Québec en 2016 [HEC Montréal, 2018]) et les énergies propres en développement.

C'est d'ailleurs la position du Gouvernement du Québec, de même que celle de plusieurs autres pays.”³⁵

62 Furthermore, as clearly transpires from internal NRCan communications dated January 2022, which the Respondent produced in document production, NRCan disagreed with the Québec Government’s conclusion in July 2021 that the GNLQ Project allegedly did not contribute to the worldwide energy transition or the reduction of global GHG emissions.³⁶

63 Second, while the Respondent argues in its Counter-Memorial that official statements supporting the use of LNG as a transition energy are “désuets[]”,³⁷ it does not explain why or otherwise seek to support this bold statement, because there is no basis for it.

³⁴ NRCan, Meeting notes with Deputy Minister M.-J. Lizotte dated 14 April 2021, at Exhibit C-0441-FRA, p. 6 et seq. ↩
³⁵ MERN, Information note on technical and economic opinion on the liquefied natural gas project Quebec (20190531-12) dated 4 July 2019, at Exhibit C-0442-FRA, p. 8 (emphasis added). ↩
³⁶ Internal NRCan email correspondence between C. Evans and N. Vrany et al. from 22 January to 27 January 2022, at Exhibit C-0443-ENG, p. 3 et seq. See also NRCan, Memorandum to the Minister dated 30 July 2021, at Exhibit C-0444-ENG, p. 1 (recently produced by the Respondent). ↩
³⁷ Counter-Memorial, p. 259 (para. 652, second bullet point). ↩

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64 As the Claimant explained in the Memorial, these statements reflected the official and consistent position of the Governments of Canada and Québec that Canadian LNG is a transitional source of energy that can contribute to the reduction of GHG emissions.³⁸

65 Furthermore, these statements can hardly be considered as “désuet[s]” to the extent that Canada’s highest public officials continued to make similar representations after the rejection of the Project, and to this day.³⁹

66 In other words, the Project was perfectly positioned to contribute to the energy transition in Canada, Québec and worldwide.⁴⁰

³⁸ See Memorial, p. 214 et seq. (paras. 714-720). ↩
³⁹ See MERN, “Prolongement du réseau de distribution de gaz naturel - Québec investit plus de 1 M$ pour le développement économique en Montérégie”, 20 July 2021, at Exhibit C-0396-ENG-FRA, p. 1 (“Le gaz naturel est une énergie de transition profitable pour le Québec”); “Caisse de dépôt: toujours foi en l'avenir d'Energir”, Le Journal de Montréal, 25 February 2022, at Exhibit C-0445-FRA, p. 1 (“Le gaz naturel, c'est une énergie de transition qui est là pour rester”); “La guerre en Ukraine ravive la flamme de GNL Québec”, Le Devoir, 10 March 2022, at Exhibit C-0446-FRA, p. 3 (“Même si nous travaillons très fort en faveur de la transition, nous savons qu'il y a un besoin de pétrole et de gaz”); “Wilkinson thinks Canada can help Europe drop Russian natural gas; Government will explore options. minister says”, Edmonton Journal, 10 March 2022, at Exhibit C-0447-ENG; “Energy chief says Canada could send gas to Europe within 3 years”, Bloomberg, 26 May 2022, at Exhibit C-0448-ENG, p. 1 (“The government is talking to Repsol and other firms interested in building LNG infrastructure about whether the regulatory process can be expedited”); “Canada would back 'economically viable' new LNG terminals -finmin”, Reuters, 14 October 2022, at Exhibit C-0449-ENG; “Canada Will Support 'Economically Feasible' LNG, Freeland Says”, The Energy Mix, 16 October 2022, at Exhibit C-0450-ENG (“LNG is an important transition fuel, and we will always be looking at economically viable LNG projects”); A. Shields (journalist at Le Devoir), Tweet, at Exhibit C-0451-FRA (“Plus tôt cette semaine, le ministre Jonathan Wilkinson a affirmé que la transition énergétique 'peut être accomplie sans un abandon du secteur pétrolier et gazier du Canada'”); J. Wilkinson, “Question No.832 - Questions on the Order Paper Routine Proceedings”, Twitter, 14 November 2022, at Exhibit C-0452-ENG; Transcript of “Rt. Hon. Justin Trudeau, Prime Minister of Canada, congratulates Cedar LNG on Positive Final Investment Decision”, Vimeo, 21 June 2024, at Exhibit C-0453-ENG; Government of Canada, “Government of Canada announces support for Cedar LNG”, 21 March 2025, at Exhibit C-0454-ENG; “Feds to contribute up to $200M for Haisla-led project to ship liquefied natural gas to Asia”, CBC News, 21 March 2025, at Exhibit C-0455-ENG. ↩
⁴⁰ Le Verger II, at Exhibit CWS-3 (Second), p. 8 (para. 13). ↩

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2.1.2 The Project accorded with Canada’s and Québec’s policies of both protecting beluga whales and promoting maritime traffic

67 As explained in the Memorial, the GNLQ Project was also in line with Canada’s and Québec’s policies for promoting the development of the Saguenay area as an industrial port, including the development of shipping on the Saguenay River, which started in the early 2010s and was updated through various development strategies over the years.⁴¹

68 The MELCC recognised as much in its Report:

“[L]e projet cadre a priori avec « Avantage Saint-Laurent », la nouvelle Stratégie maritime 2020-2025 du gouvernement du Québec, laquelle priorise le lancement des projets structurants d'infrastructures dans certains ports sur le Saint-Laurent et le Saguenay afin de stimuler l'économie québécoise et le développement socio-économique des différentes régions du Québec. Selon le MTQ [“Ministère des Transports du Québec”], le projet Énergie Saguenay cadre avec les objectifs de la Politique de mobilité durable 2030 du gouvernement du Québec, puisqu'il contribue à la mise en place de services de transport performants pour les entreprises et des infrastructures de transport favorisant la mobilité durable.’”⁴²

69 These policies remain in place to this day and the Saguenay Port Authority (“SPA”), with the support of federal and provincial authorities, is currently expecting more than CAD 250 million in investment for the modernisation of its infrastructure, which will result in an increase in maritime navigation

⁴¹ Memorial, p. 22 (paras. 50-51); First Expert Report of Christine Duchaine dated 21 November 2023, at Exhibit CER-1, p. 113 et seq. ↩
⁴² MELCC, Environmental Assessment Report dated 30 June 2021, at Exhibit C-0269-FRA, p. 12. See also an earlier version at MELCC-DGEES, Draft Environmental Analysis Report for the GNLQ Project, at Exhibit C-0456-FRA, p. 43 et seq. of the PDF. ↩

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in the Saguenay River.⁴³ Some of these funds were committed merely weeks after the Québec Government rejected the Project on 21 July 2021.⁴⁴

70 In its Counter-Memorial, the Respondent does not dispute the existence of these development policies,⁴⁵ but instead focuses in some detail on Canada’s and Québec’s policies for the protection of the beluga whale population in the St. Lawrence Estuary.⁴⁶ The Respondent, however, ignores the interaction of these policies with the Canadian authorities’ goal of developing the Saguenay port area, as if the protection of beluga whales in the Saguenay-St. Lawrence was a peremptory policy goal, which is not the case.

71 In reality, as explained by the MELCC itself, the federal and provincial authorities’ objective to protect beluga whales existed “dans un contexte

⁴³ “Port de Saguenay : investissements en infrastructures de 250 M$ d’ici 2027”, Portail Constructo, 20 June 2024, at Exhibit C-0457-FRA. On prior investments, see, e.g., Ministère des Transports et de la Mobilité durable, “Programme d’investissement en infrastructures maritimes (PIIM) – Québec investit 20 M$ pour améliorer les infrastructures maritimes au Saguenay”, 10 November 2023, at Exhibit CD-0056-FRA (“Québec investit 20 M$ pour améliorer les infrastructures maritimes au Saguenay”), “Québec et Ottawa investissent 66 millions de dollars au Port de Saguenay”, Radio-Canada, 12 August 2021, at Exhibit C-0275-FRA (“Le gouvernement du Québec et le gouvernement d'Ottawa ont versé jeudi matin une aide de 66 millions de dollars pour financer un important projet de convoyeur électrique afin de transporter les marchandises du Port de Saguenay aux entrepôts.”); Cabinet du Premier Ministre, Press Release, “Jusqu’à 33 M$ pour le développement du port de Saguenay”, 12 August 2021, at Exhibit C-0276-FRA, p. 1 (“[L]e gouvernement du Québec offrira une contribution qui pourrait atteindre 33 M$ à Développements Port Saguenay inc. pour la construction d'un système mécanisé de transport de vrac multiusager (convoyeur) alimenté à l'électricité”); Transport Canada, Press Release, “Government of Canada makes major investment at Saguenay Port”, 12 August 2021, at Exhibit C-0277-ENG (“Today, the Minister of Transport [...] and the Leader of the Government in the House of Commons and Quebec Lieutenant [...] announced a major investment of over $33 million for the Saguenay Port, through the National Trade Corridors Fund. Project funding will enhance the performance and functions of facilities at the port, helping to increase handling capacity and reduce bottlenecks in daily operations.”). See also Duchaine I, at Exhibit CER-1, p. 113 et seq. ↩
⁴⁴ See Cabinet du Premier Ministre, Press Release, “Jusqu’à 33 M$ pour le développement du port de Saguenay”, 12 August 2021, at Exhibit C-0276-FRA; Transport Canada, Press Release, “Government of Canada makes major investment at Saguenay Port”, 12 August 2021, at Exhibit C-0277-ENG. ↩
⁴⁵ See Counter-Memorial, p. 236 et seq. (paras. 591-592). ↩
⁴⁶ Counter-Memorial, p. 21 et seq. (paras. 56-61). ↩

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d’accroissement du trafic maritime”⁴⁷ in the habitat considered essential for beluga whales, including a portion of the Saguenay River and of the southern waters of the St. Lawrence River estuary.⁴⁸

72 The Project accorded with Canada’s and Québec’s efforts to protect beluga whales in that context as it indeed took into account all of the measures already taken by the authorities, as described by the Respondent in its Counter-Memorial, i.e., the designation of beluga whales as an “endangered species”,⁴⁹ the creation of the Saguenay-St. Lawrence Marine Park in 1998,⁵⁰ and the research initiatives and action plans aimed at understanding and managing the impact of underwater noise on beluga whales.⁵¹

73 Hence, first, GNLQ recognised in its EIS that beluga whales were an “endangered species”.⁵² In its first set of answers to the MELCC, GNLQ specified its engagements in relation to the potential risks to the beluga population, including a collaboration with the MFFP (by sharing information relevant for the Université du Québec en Ouataouais (“UQO”) study the MFFP was financing) and with Transport Canada, in connection with its research on underwater noise.⁵³

74 Furthermore, GNLQ adopted a charter of environmental commitments for the protection of marine mammals based on Canada’s 2019 plan of action

⁴⁷ MELCC Report, at Exhibit C-0269-FRA, p. 35. ↩
⁴⁸ MELCC Report, at Exhibit C-0269-FRA, p. 30 and 36. See also DFO, “Recovery Strategy for the beluga whale (Delphinapterus leucas) St. Lawrence Estuary population in Canada” (2012), at Exhibit C-0370-ENG, p. 42 et seq. (s. 2.4) and Counter-Memorial, p. 138 (Figure 1). ↩
⁴⁹ Counter-Memorial, p. 21 et seq. (paras. 57 and 59). ↩
⁵⁰ Counter-Memorial, p. 21 (para. 57). ↩
⁵¹ Counter-Memorial, p. 22 et seq. (paras. 59-61). ↩
⁵² See EIS, at Exhibit C-0043-FRA, p. 510 (s. 8.6.4.1). ↩
⁵³ GNLQ, Answers to Questions and Comments (Volume 1) (August 2019), at Exhibit C-0205-FRA, p. 125. ↩

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to reduce noise in the beluga whale habitat,⁵⁴ reaffirming its commitment to reduce the underwater noise caused by users of the Saguenay River.⁵⁵

75 Second, while the Saguenay-St. Lawrence Marine Park was created in 1998, and nothing in the Park’s regulations restricted commercial navigation, GNLQ took into account the one specific zone that was the exception.

76 The park was indeed created to “increase [...] the level of protection of the ecosystems of a representative portion of the Saguenay River and the St. Lawrence estuary for conservation purposes, while encouraging its use for educational, recreational and scientific purposes”.⁵⁶ The park comprises different zones, including some of “general use”.⁵⁷ As noted in the MELCC Environmental Assessment Report dated 30 June 2021 (“MELCC Report”), commercial navigation was permitted in all areas, except “Zone I”, defined as “preservation intégrale”.⁵⁸ This limitation was appropriately taken into account by GNLQ for the GNLQ Project.

77 Contrary to the Respondent’s allegation, the Saguenay River, and in particular the mouth of the Saguenay, is not “une zone relativement silencieuse de l'habitat essentiel du beluga”.⁵⁹ Recreational navigation is widespread in that area and, when developing an action plan for its 2015-2020 maritime strategy,⁶⁰ Québec referred to the promotion of recreational

⁵⁴ See Witness Statement of Simon Trépanier, at Exhibit RWS-11 (corrected), p. 11 et seq. (paras. 26-27). ↩
⁵⁵ GNLQ, “Charte d’engagements environnementaux pour la protection des mammifères marins” dated 24 September 2020, at Exhibit C-0264-FRA, p. 3 et seq. (“La Charte s’inspire des 4 axes stratégiques contenus dans le Plan d’action 2019 du gouvernement du Canada pour réduire le bruit autour du béluga, ce qui assure la cohérence de la démarche.”). See also BAPE hearing transcript (volume 4) dated 23 September 2020, at Exhibit C-0259-FRA, p. 14 of the PDF; First Witness Statement of Tony Le Verger dated 21 November 2023, at Exhibit CWS-3, p. 36 et seq. (paras. 143-152). ↩
⁵⁶ Saguenay-St. Lawrence Marine Park Act, at Exhibit C-0458-ENG-FRA, p. 2 et seq. (s. 4). ↩
⁵⁷ Saguenay-St. Lawrence Marine Park Act, at Exhibit C-0458-ENG-FRA, p. 2 (s. 2). ↩
⁵⁸ EIS, at Exhibit C-0043-FRA, p. 807. ↩
⁵⁹ Counter-Memorial, p. 136 et seq. (para. 378). ↩
⁶⁰ See Memorial, p. 22 (para. 51). ↩

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and scientific navigation in the park.⁶¹ The area is also used by other types of motorised boats, including bulk carriers, merchant ships, ferries, icebreakers, excursion and cruise ships, patrol boats belonging to the Canadian Coast Guard or Parks Canada, national defence vessels, and research ships.⁶² In 2007, a Parks Canada study estimated at 91,000 the number of yearly passages of vessels in the Saguenay-St. Lawrence Marine Park.⁶³ A 2017 study estimated the number of passages to be around 65,000.⁶⁴

78 The MELCC Report acknowledged that “il existe déjà un certain transit commercial dans le [Parc marin du Saguenay-Saint-Laurent]”, and that therefore any measures aiming at protecting beluga whales should apply to all the users of the area.⁶⁵ Thus, the existence of the Saguenay-St-Lawrence Marine Park never hindered GNLQ’s plan to have its ships use the Saguenay-St. Lawrence riverway. GNLQ had even proposed to go beyond the legal requirements, by committing to ask the federal pilots in charge of steering the ships in the Saguenay River to reduce the ships’ speed to 10 knots around the relevant protected areas.⁶⁶

⁶¹ Québec Secretariat for Maritime Affairs, “Stratégie maritime à l’horizon 2030 - Plan d’action 2015-2020”, 29 June 2015, at Exhibit C-0082-FRA, p. 32 (“[the Government] soutiendra des initiatives permettant notamment le développement des croisières-excursions, de l'observation de la faune marine ainsi que des sites naturels et patrimoniaux [...] Ceci sera bénéfique pour toutes les régions côtières du Québec, et en particulier pour le parc marin du Saguenay-Saint-Laurent.”). ↩
⁶² See EIS, at Exhibit C-0043-FRA, p. 724. See also Parcs Canada, “Portrait de la navigation dans le parc marin du Saguenay-Saint-Laurent” (2017), at Exhibit C-0459-FRA, p. 51. ↩
⁶³ See EIS, at Exhibit C-0043-FRA, p. 724. ↩
⁶⁴ Parcs Canada, “Portrait de la navigation dans le parc marin du Saguenay-Saint-Laurent” (2017), at Exhibit C-0459-FRA, p. ii et seq. ↩
⁶⁵ MELCC Report, at Exhibit C-0269-FRA, p. 36. ↩
⁶⁶ GNLQ, Answers to Questions and Comments (Volume 1) (August 2019), at Exhibit C-0205-FRA, p. 108 (No. R-101) (“La Corporation des pilotes du Bas-Saint-Laurent (la Corporation) a pris entente avec le Pare Marin du Saguenay-Saint-Laurent afin de volontairement réduire la vitesse des navires à 10 nœuds à proximité des zones de haute résidence [of marine mammals], dont la baie Sainte-Marguerite et l'embouchure du Saguenay, si cela peut être fait de manière sécuritaire. Ce sont donc les pilotes qui fixent la vitesse de transit sans égard à l'armateur ou au client. GNLQ s'engage à étendre la réduction volontaire de vitesse à l'ensemble du parc marin et les pilotes sont au fait de cet engagement puisqu'ils travaillent sur des simulations de la navigation sur le Saguenay. Cette limitation de vitesse est également incluse dans la planification logistique.”). ↩

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79 Furthermore, GNLQ undertook to have a representative of the Saguenay-St-Lawrence Marine Park participate in its consultation committee on the liquefaction complex, as requested by the MELCC.⁶⁷

80 Third, Québec’s research initiatives relating to the beluga whales cited by the Respondent in its Counter-Memorial were intended to ensure the sustainability of an increase in maritime transportation – not hinder its development.

81 Hence, the stated purpose of the UQO’s 5-year programme, cited by the Respondent,⁶⁸ was to identify such solutions, again, “dans un contexte d'accroissement du trafic maritime”.⁶⁹ As noted in the BAPE Report, “[the UQO study] souhaite que soient évalués des scénarios de développement conciliant à la fois le développement économique et la protection des mammifères marins”.⁷⁰ Likewise, in the opinion statement it presented to the BAPE,⁷¹ the UQO clearly stated that its goal was not to obstruct infrastructure projects, but to collect all the information needed for the government to make informed and fair decisions about them.⁷² In line with

⁶⁷ GNLQ, Answers to questions and commitments requested by the MELCC dated 3 June 2021, at Exhibit C-0068-FRA, p. 64 of the PDF. ↩
⁶⁸ Counter-Memorial, p. 23 (para. 61). ↩
⁶⁹ MELCC Report, at Exhibit C-0269-FRA, p. 35. ↩
⁷⁰ BAPE Report for the GNLQ Project dated 24 March 2021, at Exhibit C-0250-ENG-FRA, p. 67. See also Agency, Current Initiatives on Underwater Noise dated 14 May 2021, at Exhibit C-0460-FRA, p. 5 (“Ce programme est piloté par l'Université du Québec en Outaouais et vise à tenir compte des effets cumulatifs de différents projets de développements, tels que ceux identifiés dans la Stratégie maritime du Québec, ainsi que de la croissance projetée du transport marchand.”); Internal MFFP email correspondence (with attachment) from 23 to 28 September 2020, at Exhibit C-0461-FRA, p. 17 (where the MFFP notes “nous avons, en 2018, investi près de 2,1 M$, en collaboration avec le Secrétariat à la stratégie maritime, et confié à l'UQO le mandat de réaliser un programme scientifique de 5 ans visant à identifier des solutions en vue de réduire l'exposition des bélugas aux bruits sous-marins de la navigation, dans le contexte du déploiement de la Stratégie maritime du Québec.”). ↩
⁷¹ See BAPE Report, at Exhibit C-0250-ENG-FRA, p. 434. ↩
⁷² See BAPE Report, at Exhibit C-0250-ENG-FRA, p. 67 (“L'objectif n'est pas ici d'empêcher la concrétisation de grands projets industriels, mais bien de s'assurer, d'un point de vue sociétal, d'avoir en main toutes les informations pertinentes et nécessaires à une prise de décision éclairée et juste. Grâce à son travail, l'équipe de recherche sera en mesure de proposer des solutions concrètes de réduction du bruit, comme l'optimisation de routes maritimes, des réductions ciblées de la vitesse des bateaux ou l'ajout de technologie pour ↩

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the UQO’s goals, the Project would have bolstered economic growth in the region, while abiding by protective measures for beluga whales.

82 Finally, as the Claimant stated in the Memorial, Premier Legault expressed strong support for further industrial projects in the region, all of which would have caused substantial increases of maritime traffic and thus noise in the Saguenay River.⁷³

2.2 The Respondent found the GNLQ Project not only economically viable but also valuable

83 In its Memorial, the Claimant described how, between 2014 and 2021, Symbio raised approximately USD 125 million for the Project from external investors over four rounds of financing, during which the Québec Government, acting through IQ, offered to invest [Redacted] in the Project, [Redacted]. These offers [Redacted] after extensive due diligence carried out by IQ and its advisors.⁷⁴

84 In its Counter-Memorial, the Respondent seeks to distance itself from its own investment offers in an attempt to support a narrative that the Symbio Project was doomed to fail or be “worthless” even without Canada’s

réduire le bruit des navires.”). See also Counter-Memorial, p. 44 (para. 119) (quoting from the MELCC’s request for information of 22 May 2019: “D'ici l'avancement de ces connaissances, le MFFP va appuyer l'identification des mesures de prévention applicables avec les organisations concernées et les autorités fédérales. Plusieurs organisations, telles que le Groupe de travail sur le transport maritime et la protection des mammifères marins dans l'estuaire du Saint-Laurent, l'Alliance verte et Pêches et Océans Canada (MPO) travaillent à documenter cet enjeu et àtrouver des solutions pour concilier les usages. En complémentarité avec ces efforts, le MFFP a conclu une entente avec l'Université du Québec en Outaouais en 2018 pour un programme scientifique de cinq ans, lequel a pour objectif de développer des outils d'aide à la décision pour favoriser la conciliation du déploiement de la Stratégie maritime du Québec avec la protection de l'habitat du béluga. Pour le moment, on ne peut présumer des résultats de ce programme de recherche. L'initiateur doit s'engager à mettre en œuvre des mesures d'atténuation des impacts sur les mammifères marins qui seront validées par les partenaires du programme.”).
⁷³ Radio interview to Premier Legault, “Le show du matin” on Radio Station CKYK-FM 95.7, 19 May 2022, at Exhibit C-0033-FRA. See Memorial, p. 250 et seq. (para. 802). ↩
⁷⁴ Memorial, p. 51 et seq. (paras. 121-139), p. 69 et seq. (paras. 195-199). ↩

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breaches of the NAFTA.⁷⁵ This is untrue and based on a misrepresentation of the facts.

85 As further explained below, IQ made a first offer, on behalf of the Québec Government, to invest in the Symbio Project in 2017, confirming the viability and substantial value of the Project (Section 2.2.1). IQ repeated that offer in 2019 and 2020, further confirming the substantial value of the Project (Section 2.2.2). Despite the Québec Government’s failure to follow through on that offer and the efforts to undermine the Claimant by leaking to the press the withdrawal of a major potential investor, [Redacted] the Project remained attractive to investors (Section 2.2.3).

2.2.1 The Québec Government, through IQ, offered to invest in the GNLQ Project in 2017, and confirmed its substantial value

86 As explained in the Memorial, the Québec Government first raised the possibility of a public investment in the Project in 2014. This developed into formal discussions with IQ as part of Symbio’s third round of financing in 2016-2017. Following a substantial due diligence by IQ and its professional advisors, [Redacted]⁷⁶ After the Council of Ministers of Québec (the “Québec Cabinet”) failed to vote on that investment in August 2017 for reasons that the Respondent has still not explained, [Redacted].⁷⁸ However, on 15 September 2017, the Deputy Minister of the MEI informed the Claimant that the letter would not be submitted to the Québec

⁷⁵ Counter-Memorial, p. 38 (para. 105). ↩
⁷⁶ Memorial, p. 51 et seq. (para. 125-130); [Redacted] at Exhibit C-0193-ENG-FRA; [Redacted] at Exhibit C-0195-ENG-FRA. ↩
⁷⁷ Although the MEI was called Ministère de l’Économie, de la Science et de l’Innovation (MESI) and only became the Ministère de l’Économie et de l’Innovation (MEI) in October 2018, the Claimant will use the acronym MEI throughout this submission for consistency. ↩
⁷⁸ Memorial, p. 53 et seq. (paras. 130-134); [Redacted] at Exhibit C-0196-ENG-FRA. ↩

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Cabinet for approval as planned. He did not provide any explanation for the turnaround, and, as a result, the Claimant closed its third round of financing without IQ's investment.⁷⁹

87 In the Counter-Memorial, the Respondent tries to downplay the significance of the Québec Government's offers to invest (made through IQ), even asserting that it was the Claimant who first approached Québec "with insistence" for financing and suggesting that, despite the due diligence carried out and the letters issued, Québec never intended to invest.⁸⁰ Both contentions are belied by the evidence on record.

88 First, as confirmed by the Claimant's witnesses and contemporaneous documents, it is the MEI which first suggested a potential investment by the Québec Government in the GNLQ Project, as early as 2014. In fact, when Symbio held initial discussions with IQ in July 2014, Symbio's stakeholders were not convinced that Québec would be the right investor for the Project. Symbio had already received offers for its second round of financing and, as recorded in an internal Symbio email dated 3 September 2014, Symbio did not think at that point that it was worth committing resources to discussions with "an investor [i.e., IQ] that we may never accept funds from."⁸¹

89 Nevertheless, the Claimant was open to a possible investment as part of its next round of financing. Following further discussions between Symbio and IQ, [Redacted]

[Redacted]

⁷⁹ Le Verger I, at Exhibit CWS-3, p. 21 et seq. (paras. 81-82). ↩

⁸⁰ Counter-Memorial, p. 37 (para. 103); Witness Statement of Simon Sanschagrin dated 12 July 2024, at Exhibit RWS-10, p. 12 et seq. (paras. 40-49). ↩

⁸¹ Internal GNLQ email correspondence from 11 July 2014 to 4 September 2014, at Exhibit TLV-0127-ENG, p. 1. See also Le Verger I, at Exhibit CWS-3, p. 18 (para. 61); Second Witness Statement of Jim Illich, at Exhibit CWS-1 (Second), p. 12 (para. 27); See also MEIE, GNLQ interministerial committee monitoring table dated 5 February 2015, at Exhibit C-0462-FRA, p. 3; MEIE, GNLQ interministerial committee monitoring table dated 26 November 2015, at Exhibit C-0463-FRA, p. 4; Le Verger II, at Exhibit CWS-3 (Second), p. 22 (para. 60). ↩

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90 [Redacted]

91 The Respondent's assertion that the Claimant first approached the Respondent “with insistence” sits uncomfortably with the above documentary evidence. It is based solely on the testimony of Mr Sanschagrin, an employee of IQ who was only involved in discussions on the Symbio Project from early 2017, and thus would not have known first-hand who initiated discussions on financing in 2014-2015.⁸⁴

92 Furthermore, as Mr Illich and Mr Le Verger explain, the Symbio Project was not dependent on public funding, and did not initially envisage – let alone seek out – funding from the Québec Government.⁸⁵ The Respondent's assertion that Québec could not possibly be the only or the main source of funding for the Project is therefore a red herring;⁸⁶ the Claimant never suggested that that would be the case. Rather, as explained in the Memorial, the significance of IQ's offer was primarily symbolic as it reaffirmed the Québec Government's support for the Project. However, this also meant that, when Québec's investment abruptly failed to materialise, that volte-face temporarily undermined Symbio's fundraising efforts.⁸⁷

⁸² [Redacted] at Exhibit C-0153-ENG-FRA, p. 2. ↩

⁸³ [Redacted] at Exhibit C-0153-ENG-FRA, p. 2; Le Verger I, at Exhibit CWS-3, p. 19 (para. 65). ↩

⁸⁴ Le Verger II, at Exhibit CWS-3 (Second), p. 23 (para. 62); Sanschagrin, at Exhibit RWS-10, p. 12 (para. 40). ↩

⁸⁵ Illich II, at Exhibit CWS-1 (Second), p. 10 et seq. (paras. 26-27); Le Verger II, at Exhibit CWS-3 (Second), p. 22 (paras. 59-60). ↩

⁸⁶ Counter-Memorial, p. 37 et seq. (para. 103). ↩

⁸⁷ Memorial, p 53 et seq. (paras. 131-135). ↩

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93 Second, the Respondent's contention that [Redacted] is an afterthought, equally belied by the contemporaneous documentary evidence.⁸⁸

94 [Redacted]⁸⁹ Similarly, [Redacted]⁹⁰ Following the completion of its due diligence, IQ [Redacted]

95 [Redacted]⁹² Symbio was informed that the investment would be tabled for Cabinet approval on 30 August 2017.

⁸⁸ Sanschagrin, at Exhibit RWS-10, p. 12 et seq. (paras. 41, 44). ↩

⁸⁹ [Redacted] at Exhibit JI-0083-ENG-FRA, p. 33. ↩

⁹⁰ [Redacted] at Exhibit SS-0014-FRA, p. 5 et seq. ↩

⁹¹ [Redacted] at Exhibit C-0193-ENG-FRA; [Redacted] at Exhibit C-0195-ENG-FRA; [Redacted] at Exhibit SS-0017-FRA; [Redacted] at Exhibit C-0196-ENG-FRA. ↩

⁹² See, e.g., [Redacted] at Exhibit C-0195-ENG-FRA, p. 1; [Redacted] at Exhibit C-0196-ENG-FRA, p. 1. ↩

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However, as the Cabinet did not then approve the investment, [Redacted]⁹³

96 While the decree approving the investment was apparently withdrawn from the Québec Cabinet's agenda following discussions within Cabinet, the Respondent has provided no evidence that this was due to any concerns with the risks or economic viability of the Project.⁹⁴ On the contrary, the evidence shows that the MEI's assistant Deputy Minister told Symbio at the time that the Québec Cabinet was simply concerned about the "optics" of investing in the Project shortly before an election.⁹⁵ Moreover, if the feasibility or viability of the Project were really the stumbling block, [Redacted] as described below.

97 As explained in the Memorial, the Québec Government's sudden change of heart disrupted the closing of the third round of financing. The sum of [Redacted] had been allocated to Québec and, at Québec's invitation, Symbio had communicated that offer to investors who had made their own investments conditional on IQ's.⁹⁶ Despite this hurdle, Symbio managed to close the third round of financing and the economic fundamentals of the Project remained strong – as demonstrated when, in the fourth round, Québec again offered to invest.

⁹³ Illich I, at Exhibit CWS-1, p. 61 et seq. (paras. 173-176); Le Verger I, at Exhibit CWS-3, p. 20 et seq. (paras. 76-77); [Redacted] at Exhibit C-0196-ENG-FRA. ↩

⁹⁴ Indeed, the Respondent has asserted Cabinet privilege over the Québec Cabinet's agendas and minutes, and communications with IQ and MEI, that would shed light on the reasons for this volte-face. See, Claimant's Document Production Requests dated 19 August 2024, p. 70 (Request No. 32). ↩

⁹⁵ Illich I, at Exhibit CWS-1, p. 61 (para. 173); GNLQ Project - Third Round Financing Status Update and Scenario Overview dated 26 September 2017, at Exhibit C-0381-ENG, p. 4 et seq. ↩

⁹⁶ Memorial, p. 52 et seq. (para. 129). ↩

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2.2.2 The Québec Government and IQ renewed their interest in investing in the Project in 2019-2020, and re-confirmed its substantial value

98 As explained in the Memorial, the Québec Government, through IQ, [Redacted] in the Project in the fourth round of financing.⁹⁷ In its Counter-Memorial, Canada again tries to distance itself from its previous interest in the Project, now arguing that [Redacted]⁹⁸ This is not credible.

99 First, [Redacted]⁹⁹ However, even a cursory review of [Redacted]¹⁰⁰

100 The Québec Government itself seems not to have agreed with [Redacted] since IQ (with the approval of the MEI)¹⁰¹ went on

⁹⁷ Memorial, p. 71 (para. 198). ↩

⁹⁸ Counter-Memorial, p. 38 et seq. (paras. 105-107). ↩

⁹⁹ Counter-Memorial, p. 38 (para. 105); [Redacted] ↩

¹⁰⁰ [Redacted] at Exhibit SS-0004-FRA, p. 34 (p. 39 of the PDF). ↩

[Redacted] at Exhibit SS-0004-FRA, p. 2 (p. 7 of the PDF), 34 (p. 39 of the PDF); Second Expert Report of Secretariat dated 18 April 2025, at Exhibit CER-3 (Second), p. 31 et seq. (paras. 3.39-3.40).

¹⁰¹ Email correspondence between S. Sanschagrin (IQ) and R. Jeudi (MEI) from 29 January 2020 to 31 January 2020, at Exhibit C-0464-FRA; Email correspondence between S. Sanschagrin (IQ) and A. Cloutier (MEI) dated 24 October 2019, at Exhibit C-0465-FRA; ↩

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to [Redacted]¹⁰² [Redacted]¹⁰³ In fact, [Redacted] which IQ would only have done because it expected the Québec Cabinet to approve that investment.¹⁰⁴

101 Thus, although the Respondent asserts that the Québec Government ultimately decided not to invest due to “des risques associés aux projets”, it fails to provide any documentary evidence in support of this statement.¹⁰⁵ Notably, when requested, in document production, to produce the Cabinet agenda, minutes and communications with IQ and the MEI to confirm why the Québec Cabinet had backed out of its offer to invest in the Project, the Respondent chose to assert Cabinet privilege over all of those documents on the grounds that they were politically sensitive.¹⁰⁶ The Respondent's assertion therefore stands unsupported.

102 Second, the Respondent now also insists that IQ's investment offer was made in its capacity as agent (“mandataire”) of the MEI, rather than on its own account and from its own funds.¹⁰⁷ This assertion is of no moment and, in any case, unsupported by the evidence.

Email correspondence between S. Sanschagrin (IQ) and A. Cloutier (MEI) dated 10 February 2020, at Exhibit C-0466-FRA.

¹⁰² [Redacted] at Exhibit C-0226-ENG-FRA; [Redacted] at Exhibit C-0227-ENG-FRA; [Redacted] at Exhibit C-0228-ENG-FRA. ↩

¹⁰³ [Redacted] at Exhibit C-0228-ENG-FRA, p. 4. ↩

¹⁰⁴ [Redacted] at Exhibit C-0236-ENG, p. 2. ↩

¹⁰⁵ Counter-Memorial, p. 39 (para. 107). ↩

¹⁰⁶ See Procedural Order No. 4, Annex A dated 30 November 2024, p. 128 (Request 35). ↩

¹⁰⁷ Counter-Memorial, p. 280 (para. 699, n. 1145). ↩

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103 That IQ was acting only as agent for the MEI is entirely irrelevant. Indeed, whether the funds belonged to IQ or the MEI, Québec's investment was to be made using public funds. It is inconceivable that, if IQ had concluded that the Project was too risky, as the Respondent now contends, it would have made an offer to invest [Redacted] in it. Equally, save for being grossly negligent, IQ could not have possibly recommended that Québec effectively waste public funds by investing in a Project for which it could never expect a return. Regardless of whether IQ was acting as an agent of the MEI, or on its own accord, the Québec Government was relying on IQ's due diligence and recommendation.¹⁰⁸

104 In any case, there is no evidence showing that IQ, when acting as agent for the MEI, applied a different or lower standard of scrutiny to investment than when using its "own funds". In document production, the Respondent agreed in response to the Claimant's Request 31 to produce IQ's mandates in connection with Symbio's third and fourth rounds of financing, which would have shown the criteria used by IQ to evaluate this proposed investment. However, the Respondent eventually failed to produce anything, asserting that these documents were not in its possession, custody or control, which is simply not credible.¹⁰⁹ The Respondent's allegations regarding IQ's mandate and the standards it applied therefore stands unsupported and should be rejected.¹¹⁰

105 Third, [Redacted]¹¹¹ In making this extraordinary allegation, the Respondent

¹⁰⁸ See, e.g., [Redacted] at Exhibit C-0226-ENG-FRA, p. 1 ↩

¹⁰⁹ Respondent's letter to the Tribunal dated 28 March 2025, p. 1 ("Nous avons effectué des recherches raisonnables afin d'identifier des documents répondant aux demandes no. 23 et 31 et le défendeur n'a pas en sa possession ou sous son contrôle de document répondant à ces demandes."). ↩

¹¹⁰ Cf. Nachingwea and others v. Tanzania, ICSID Case No. ARB/20/38, Award, 14 July 2023, at Exhibit CL-280-ENG, p. 76 (paras. 263-268), finding the respondent's argument that it had "tried to search for the requested documents without success" unconvincing, noting that the documents would fall within the Respondent's possession, custody or control, and accordingly drawing adverse inferences against the Respondent as a result. ↩

¹¹¹ Counter-Memorial, p. 38 et seq. (para. 106). ↩

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relies solely on the testimony of Mr Sanschagrin and is, again, unable to point to a single supporting document. That is because its post hoc story is patently false. As the documentary record show, IQ and the Québec Government offered to invest in the Project [Redacted] To sum up:

• [Redacted]¹¹²
• The Québec Government issued a [Redacted]¹¹³ Detailed due diligence and negotiations with IQ ensued over the following months.¹¹⁴
• [Redacted]
• [Redacted]
• [Redacted]¹¹⁷

¹¹² [Redacted] at Exhibit C-0193-ENG-FRA; [Redacted] at Exhibit C-0195-ENG-FRA; [Redacted] at Exhibit SS-0017-FRA; [Redacted] at Exhibit C-0196-ENG-FRA. ↩

¹¹³ [Redacted] at Exhibit C-0183-ENG-FRA, p. 2. ↩

¹¹⁴ Illich I, at Exhibit CWS-1, p. 65 et seq. (paras. 187-188); Le Verger I, at Exhibit CWS-3, p. 23 (paras. 90-92). ↩

¹¹⁵ [Redacted] ↩

¹¹⁶ [Redacted] ↩

¹¹⁷ [Redacted] at Exhibit C-0226-ENG-FRA. ↩

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• [Redacted]¹²⁰
• [Redacted]
• [Redacted]
• [Redacted]
• [Redacted]

106 In other words, there is simply no basis for the Respondent's claim in this arbitration that [Redacted]

107 [Redacted] Québec's Minister of Economy, Mr Fitzgibbon, continued to suggest that Québec would still be willing to participate in the financing of the Project, provided that the Federal Government and/or the

¹¹⁸ [Redacted] ↩

¹¹⁹ [Redacted] ↩

¹²⁰ [Redacted] at Exhibit C-0227-ENG-FRA. ↩

¹²¹ [Redacted] ↩

¹²² [Redacted] ↩

¹²³ [Redacted] ↩

¹²⁴ [Redacted] ↩

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Government of Alberta would co-invest alongside Québec, which ultimately came to naught.¹²⁵

2.2.3 While the Québec Government reneged on its planned investment and sought to undermine the GNLQ Project in the media, Symbio continued to attract financing

108 In its Counter-Memorial, [Redacted]¹²⁶ This, too, is pure fantasy.

109 [Redacted] but it was neither caused by, nor a reflection of a lack of viability of the Project. As explained below, what proved far more damaging was the Québec Government's decision in March 2020 to leak this development to the press, in a manner that negatively targeted the Project at a crucial moment.

110 First, as explained by Mr Illich in his second witness statement, and confirmed by Mr Krolick, a project financier with more than 20 years' experience, [Redacted]

111 On launching the fourth round of financing, Symbio only intended to raise development finance to fund its operations until the next round. [Redacted]

¹²⁵ Illich II, at Exhibit CWS-1 (Second), p. 13 et seq. (paras. 31-34). ↩

¹²⁶ Counter-Memorial. p. 280 (para. 698). ↩

¹²⁷ Illich II, at Exhibit CWS-1 (Second), p. 17 et seq. (paras. 38-39); First Witness Statement of Alexander Krolick, at Exhibit CWS-8, p. 8 et seq. (paras. 18-19). ↩

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[Redacted] As such, it attested to Symbio's strong business model, encouraging economic viability and environmental credentials.

112 Second, Canada's assertion that [Redacted] in that “seulement quelques jours séparent le message [Redacted]”, is demonstrably false.¹²⁹

113 [Redacted]

114 As explained in the Memorial, [Redacted] railway blockades spread across Canada in mid-February 2020, and the Federal Government proved unable or unwilling to enforce court orders to remove the protestors.¹³² [Redacted]

¹²⁸ [Redacted] ↩

¹²⁹ Counter-Memorial, p. 280 (para. 698). ↩

¹³⁰ [Redacted] ↩

¹³¹ [Redacted] ↩

¹³² Memorial, p. 74 (para. 209). ↩

¹³³ [Redacted] ↩

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115 Third, and in any case, despite [Redacted] the Project still benefited from the financial support of significant investors such as [Redacted]¹³⁵ as well as strong interest from new potential investors, such as [Redacted] Symbio was still in discussions with those investors in July 2021. The Québec Government's Decree refusing the GNLQ Project meant their investments ultimately did not come to fruition.¹³⁶

116 Fourth, [Redacted] would have had limited consequences on GNLQ's fourth round of financing had it not been for the Québec Government leaking this news to the press.¹³⁷

117 Indeed, as explained in the Memorial, on [Redacted]

¹³⁴ [Redacted] ↩

¹³⁵ Illich II, at Exhibit CWS-1 (Second), p. 19 et seq. (para. 42). ↩

¹³⁶ [Redacted] ↩

¹³⁷ Illich II, at Exhibit CWS-1 (Second), p. 21 et seq. (paras. 45-46). ↩

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[Redacted] significantly undermined the Project with other potential investors and customers. It made no reference to the Québec Government's own offer to invest in the Project in the same round of financing, and appears to have been part of an effort by the Québec Government to distance itself from the Project altogether.¹³⁸

118 In its Counter-Memorial, the Respondent is careful not to deny expressly that it was the source of this leak. Rather, it limits itself to asserting, in merely one paragraph and later in a footnote, that [Redacted] That is wrong.

119 Mr Illich explained in his first witness statement [Redacted]

120 Importantly, [Redacted]

¹³⁸ Memorial, p. 75 et seq. (paras. 212-219). ↩

¹³⁹ Counter-Memorial, p. 220 (para. 562), p. 272 (para. 680, fn 1113). ↩

¹⁴⁰ Illich I, at Exhibit CWS-1, p. 73 (para. 213); Memorial, p. 76 et seq. (para. 216-217). ↩

¹⁴¹ Illich I, at Exhibit CWS-1, p. 73 (para. 213); Memorial, p. 76 (para. 216). ↩

¹⁴² [Redacted] ↩

¹⁴³ [Redacted] ↩

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121 During document production in this arbitration, the Respondent insinuated that the Claimant might have been responsible for the leak.¹⁴⁴ This is flatly contradicted by the sources cited in the article itself, and strongly denied. The Respondent is unable to explain why – as indeed it would have made no sense - Symbio would have leaked negative news about its project to the press, particularly when it was seeking to close its fourth round of financing and the BAPE hearings were about to commence.¹⁴⁵ The Respondent's eagerness to point the finger at the Claimant, while still opting neither to confirm nor deny its responsibility for the leak, speaks for itself.¹⁴⁶

122 This leak was only one of several irregularities and political interferences in the Respondent's treatment of the Claimant that marred the arbitrary and procedurally unfair EA process of the Symbio Project, leading to its rejection.

2.3 The federal and provincial authorities failed to conduct either an Agency-led federal assessment or a joint assessment of the GNLQ Project

123 In the Memorial, the Claimant explained that the GNLQ Project should never have been the subject of two distinct and uncoordinated provincial and federal EAs resulting in two separate decisions.¹⁴⁷ Instead, the assessment should have been carried out through a single federal review by the Agency, or a joint assessment with the MELCC pursuant to the Canada-Québec Agreement, in line with established practice in similar projects. The lack of federal leadership caused the desynchronisation of the two processes and enabled the Québec Government effectively to lead

¹⁴⁴ Claimant's Reply to Canada's Objections to Document Production Requests dated 25 October 2024, p. 80. ↩

¹⁴⁵ Letter from MELCC to the President of the BAPE dated 20 February 2020, at Exhibit C-0222-FRA. ↩

¹⁴⁶ Even after the Tribunal overruled the Respondent's objections and ordered it to produce documents responsive to the Claimant's Request 23 that would confirm the source of the leak, Canada conspicuously failed to produce any document. See PO4, Annex A, p. 90 (Request No. 23); Email correspondence between Respondent to Claimant from 20 February 2025 to 22 February 2025, at Exhibit C-0434-ENG-FRA. ↩

¹⁴⁷ Memorial, p. 182 et seq. (paras. 608-609). ↩

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the process and issue the Decree based on criteria outside its jurisdiction, before the Federal Government essentially followed suit.

124 In response, the Respondent argues in its Counter-Memorial that:

• there was no legal requirement that there be a joint assessment of the Project;¹⁴⁸
• the Canada-Québec Agreement is not binding, has seldom been applied, and its application would not affect the federal and provincial authorities' respective powers;¹⁴⁹
• the Agency and the MELCC cooperated throughout the entire EA process and thereby applied the spirit of the Canada-Québec Agreement, even if not to the letter;¹⁵⁰ and
• GNLQ never complained about, or challenged, the conduct of two separate assessments at the time.¹⁵¹

125 These arguments are all ill-founded: the Respondent's assertion that a joint assessment, based on the Canada-Québec Agreement or other rules, was not required is wrong as a matter of Canadian law and practice (Section 2.3.1), and the evidence shows that the Agency and the MELCC did not cooperate meaningfully (Section 2.3.2). As for GNLQ, it was not in a position to challenge or dispute Canada's and Québec's wrongful decisions at the time (Section 2.3.3).

2.3.1 Canadian law mandated a single federal assessment or a joint assessment

126 In the Memorial, the Claimant relied on the reports of its Canadian law experts, Me Duchaine and Mr Northey, to show that the GNLQ Project

¹⁴⁸ Counter-Memorial, p. 178 (para. 481). ↩

¹⁴⁹ Counter-Memorial, p. 36 et seq. (paras. 100-102) and p. 77 et seq. (para. 479). ↩

¹⁵⁰ Counter-Memorial, p. 63 et seq. (paras. 172) and p. 178 et seq. (paras. 480 and 482). ↩

¹⁵¹ Counter-Memorial, p. 165 (para. 452). ↩

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should have been subject to a single federal assessment or to a joint assessment.¹⁵²

127 In its Counter-Memorial, the Respondent seeks to challenge the Claimant's expert evidence, relying on its own experts, Ms Sarah Powell and Me Michel Yergeau, to contend, wrongly, that there was nothing unlawful in conducting two separate EAs, for the following reasons:

• this was in line with the constitutional allocation of powers between federal and provincial authorities, under which both levels of government are entitled to conduct EAs that relate to one of their constitutional powers;¹⁵³
• there was no legal obligation on the part of either Canada or Québec to abstain from conducting its own, separate assessment;¹⁵⁴
• there was no legal duty imposed on the Agency and the MELCC to collaborate, as the Canada-Québec Agreement is not mandatory;¹⁵⁵
• a joint assessment is not the usual practice;¹⁵⁶
• a joint assessment would not necessarily have been in GNLQ's interest.¹⁵⁷

128 None of these points are correct, as explained by Mr Northey and Me Duchaine in their second reports and as set out below.

129 By way of preliminary remarks, it should be stressed that these questions do not concern "grey areas" of law, on which equally knowledgeable legal experts could reasonably disagree.

130 Nor, with respect, is this an instance of disagreement between legal experts of comparable experience on both sides: Mr Northey and Me Duchaine

¹⁵² Memorial, p. 176 et seq. (paras. 587-594, 608-609, 669); Duchaine I, at Exhibit CER-1, p. 4, (paras. 64-69, 72, 75, 98 and 128); First Expert Report of Rodney Northey dated 20 November 2023, at Exhibit CER-2, p. 18 et seq. (paras. 51 and 72-76). ↩

¹⁵³ Counter-Memorial, p. 177 (para. 479). ↩

¹⁵⁴ Counter-Memorial, p. 178 (para. 481). ↩

¹⁵⁵ Counter-Memorial, p. 178 (para. 481). ↩

¹⁵⁶ Counter-Memorial, p. 179 (para. 482). ↩

¹⁵⁷ Counter-Memorial, p. 179 et seq. (para. 483). ↩

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have far more, and more recent, experience in environmental assessments and related litigation under the current Canadian and Québec legal regimes than Ms Powell and Me Yergeau respectively.¹⁵⁸ Mr Northey has over 34 years of experience in federal environmental law. He is the author of the leading Guide to Canada's Impact Assessment Act; he advises and represents proponents in the context of environmental assessments and in related litigation proceedings at both provincial and federal levels, including before the Canadian Supreme Court.¹⁵⁹ Likewise, Me Duchaine has been practicing Québec environmental law for more than 35 years,¹⁶⁰ representing clients before Québec courts on environmental law matters, or advising clients in relation to the environmental assessment of their projects.¹⁶¹

131 In contrast, Ms Powell's experience mainly concerns the environmental law aspects of financial transactions in relation to project acquisition or financing.¹⁶² As for Me Yergeau, his appointment as a judge of the Québec Cour supérieure some 13 years ago (in 2012) required him to move away from his exclusive focus on environmental law to embrace a broader practice until very recently.¹⁶³ As Me Duchaine highlights in her second report, Me Yergeau is now defending outdated, if not clearly obsolete,

¹⁵⁸ See Northey I, at Exhibit CER-2, p. 79 et seq. (Appendix A – Curriculum vitae); Second Expert Report of Christine Duchaine dated 7 April 2025, at Exhibit CER-1 (Second), p. 209 et seq. (Annex IV – Curriculum vitae); Expert Report of Sarah Powell dated 12 July 2024, at Exhibit RER-3, p. 85 et seq. (Appendix A - Curriculum vitae); Expert Report of Michel Yergeau dated 12 July 2024, at Exhibit RER-2, p. 12 et seq. (paras. 25-39). ↩

¹⁵⁹ Northey I, at Exhibit CER-2, p. 82. ↩

¹⁶⁰ Duchaine II, at Exhibit CER-1 (Second), p. 209 (Annex IV – Curriculum vitae). ↩

¹⁶¹ Duchaine II, at Exhibit CER-1 (Second), p. 209 et seq. (Annex IV – Curriculum vitae). ↩

¹⁶² Powell, at Exhibit RER-3, p. 85 et seq. (Appendix A) (Showing that, out of 45 projects selected as Ms Powell's "representative work", only seven (or more likely six, as two of these projects are strictly identical) related to actual environmental assessments. The 38 other projects consisted of transactional work, or providing expertise in an arbitration matter. None of Ms Powell's representative work relates to environmental law litigation). ↩

¹⁶³ Yergeau, at Exhibit RER-2, p. 12 et seq. (paras. 25-36). ↩

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conceptions of Québec's environmental law,¹⁶⁴ and failed to provide any supporting authority for many of his controversial opinions.¹⁶⁵

2.3.1.1 Exclusive federal jurisdiction of the Agency

132 As Mr Northey and Me Duchaine both independently opine, the nature of the GNLQ Project meant that the Agency had exclusive jurisdiction to conduct a federal EA, without deferring to Québec, because it involved primarily the assessment of matters that are exclusively within the federal powers, and because of its location on federal land owned by the SPA.¹⁶⁶

133 Pursuant to the Canadian constitutional law principle of federal paramountcy, where there is overlapping authority between the Federal and provincial Governments, federal law will prevail in case of conflict. This is a principle confirmed by Mr Northey and Me Duchaine,¹⁶⁷ and on which the Respondent's own experts chose not to engage. On the facts of this case, it clearly required that the Agency exercise exclusive federal jurisdiction to conduct the EA of the GNLQ Project.¹⁶⁸

134 Addressing the federal perspective, Mr Northey explains that Canadian “[l]aw and practice support the application of federal EA to all projects on port authority lands.”¹⁶⁹ He then proceeds to demonstrate that the same should have applied in the present case, i.e., that the GNLQ Project should have been subject to a federal-only EA.¹⁷⁰

¹⁶⁴ See, e.g., Duchaine II, at Exhibit CER-1 (Second), p. 9 et seq. (paras. 37-47) and p. 32 (paras. 113-114). ↩

¹⁶⁵ See, e.g., Duchaine II, at Exhibit CER-1 (Second), p. 2 (para. 8), p. 45 et seq. (paras. 150-151), p. 96 (para. 261), p. 99 (para. 275), p. 105 (para. 290), p. 114 (para. 314), p. 147 et seq. (paras. 382-388). ↩

¹⁶⁶ Second Expert Report of Rodney Northey dated 14 April 2025, at Exhibit CER-2 (Second), p. 18 et seq. (paras. 40-59); Duchaine II, at Exhibit CER-1 (Second), p. 13 et seq. (paras. 48-80). ↩

¹⁶⁷ Northey I, at Exhibit CER-2, p. 50 et seq. (para. 149); Northey II, at Exhibit CER-2 (Second), p. 34 et seq. (para. 80); Duchaine II, at Exhibit CER-1 (Second), p. 9 et seq. (paras. 37-47) and p. 22 et seq. (paras. 84-88). ↩

¹⁶⁸ Northey II, at Exhibit CER-2 (Second), p. 34 et seq. (para. 80); Duchaine II, at Exhibit CER-1 (Second), p. 9 et seq. (paras. 37-47) and p. 22 et seq. (paras. 84-88). ↩

¹⁶⁹ Northey II, at Exhibit CER-2 (Second), p. 20 (para. 49) (emphasis in original). ↩

¹⁷⁰ Northey II, at Exhibit CER-2 (Second), p. 21 et seq. (paras. 50-54). ↩

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135 According to Mr Northey, Ms Powell's analysis on this point is wrong. Contrary to her analysis, the location of the GNLQ Project on land registered as "Schedule C" land had no impact on its qualification as federal property.¹⁷¹ The “key question” is whether the SPA's regulatory authorisation was required to use the land.¹⁷² That was indeed the case for the GNLQ Project land because the SPA was required to exercise its powers to issue a lease for use of its land for the GNLQ Project.¹⁷³

136 Mr Northey also points out the following:

• The case law relied on by Ms Powell is inapposite, as it does not address the notion of federal land in an environmental law context.¹⁷⁴
• Ms Powell herself acknowledges and refers to recent examples of the federal authorities' practice of carrying out the EA of projects located on federal land, such as the North Shore Terminal project which, like the GNLQ Project, is also entirely located on land owned by the SPA. The North Shore Terminal project was only subject to a federal assessment without any objection from Québec.¹⁷⁵
• Ms Powell fails to address the “strongest illustration" of the federal practice with regard to EAs, namely the 1998 Sub-Agreement on Environmental Assessment, which confirms that the "federal government will be the lead Party for proposed projects on federal lands".¹⁷⁶

137 Considering the matter from the Québec perspective, Me Duchaine takes the same view as Mr Northey, namely that the location of the GNLQ Project on federal land was a source of exclusive federal jurisdiction, and

¹⁷¹ Northey II, at Exhibit CER-2 (Second), p. 23 et seq. (paras. 55-57). ↩

¹⁷² Northey II, at Exhibit CER-2 (Second), p. 24 (paras. 56-57). ↩

¹⁷³ Northey II, at Exhibit CER-2 (Second), p. 24 (paras. 56-57). See also Email correspondence between the Agency and the SPA dated 8-9 December 2015, at Exhibit RN-0186-FRA; Agency, Information sheet for the GNLQ Project, at Exhibit RN-0187-FRA. ↩

¹⁷⁴ Northey II, at Exhibit CER-2 (Second), p. 24 et seq. (para. 58-59). ↩

¹⁷⁵ Northey II, at Exhibit CER-2 (Second), p. 22 et seq. (paras. 53-54). ↩

¹⁷⁶ Northey II, at Exhibit CER-2 (Second), p. 27 (para. 63). ↩

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refutes Me Yergeau's similar objections to those of Ms Powell in this respect.¹⁷⁷

138 Me Duchaine adds that the exclusive federal jurisdiction over the EA of the GNLQ Project also derived from the need to address matters pertaining to maritime navigation and infrastructure, both of which are within federal jurisdiction.¹⁷⁸ She opines that the specific assessments of (i) the impact of maritime transportation on marine mammals and (ii) nation-wide GHG emissions, both fall within exclusive federal jurisdiction.¹⁷⁹ In this respect, as she demonstrates, Me Yergeau's position that Québec could simply usurp federal powers when conducting its own EA is wrong from a constitutional law perspective.¹⁸⁰

139 Me Duchaine concludes that, in the circumstances, Québec should have declined jurisdiction and deferred to the federal authorities to conduct the EA, as indeed it did for the North Shore Terminal project.¹⁸¹

140 Contrary to the Respondent's position in this arbitration, it appears that the Agency contemporaneously shared Mr Northey's and Me Duchaine's opinion that the federal authorities had exclusive jurisdiction to conduct the EA of the GNLQ Project. This is what transpires from an internal email from the Department of Fisheries and Oceans (the “DFO") regarding a meeting with the Agency following the Québec Government's Decree rejecting the GNLQ Project. In that email, obtained in document production, the DFO reported that the Agency considered that GNLQ could challenge Québec's decision by invoking the doctrine of federal paramountcy:

“Le promoteur pourrait contester la décision du Québec et invoquer la préséance du fédéral selon l'Agence.”¹⁸²

¹⁷⁷ Duchaine II, at Exhibit CER-1 (Second), p. 20 (paras. 75-77). ↩

¹⁷⁸ Duchaine II, at Exhibit CER-1 (Second), p. 21 et seq. (paras. 82-83). ↩

¹⁷⁹ Duchaine II, at Exhibit CER-1 (Second), p. 27 et seq. (paras. 96-105). ↩

¹⁸⁰ Duchaine II, at Exhibit CER-1 (Second), p. 30 et seq. (paras. 106-114). ↩

¹⁸¹ Duchaine II, at Exhibit CER-1 (Second), p. 30 (para. 105). ↩

¹⁸² Internal DFO email dated 3 August 2021, at Exhibit C-0470-FRA (emphasis added). ↩

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141 It results from the above that there should only have been one EA process and one decision issued by the Federal Government, with no decision required from the Québec Government, or, at worse, as explained below, a joint, coordinated EA process in accordance with the Canada-Québec Agreement.

2.3.1.2 Application of the Canada-Québec Agreement

142 As explained by both Mr Northey and Me Duchaine, even assuming that both federal and provincial authorities should have been involved – despite the overwhelming part of the GNLQ Project falling within federal jurisdiction - the Canada-Québec Agreement should have been applied and resulted in a joint assessment.¹⁸³

143 As explained in the Memorial, the Canada-Québec Agreement establishes the default framework for the two level of State authorities to conduct a coordinated joint assessment, whenever they have an overlapping responsibility for a project pursuant to their respective environmental laws.¹⁸⁴

144 The federal and Québec authorities both failed to comply with all the steps required by the Canada-Québec Agreement.

145 First, the MELCC and the Agency should have consulted each other and collaborated with GNLQ “as early as possible" to ensure the provision of the information needed to establish their EA responsibilities and “advise[d]" GNLQ “at the earliest opportunity, about the potential for a cooperative environmental assessment”.¹⁸⁵ However, neither the Agency nor the MELCC did so.

146 Second, the MELCC and the Agency should have notified each other “in a timely manner about projects that are potentially subject to a cooperative environmental assessment" and provided each other “mutual access to the

¹⁸³ Northey II, at Exhibit CER-2 (Second), p. 25 et seq. (paras. 59-72); Duchaine II, at Exhibit CER-1 (Second), p. 53 et seq. (paras. 157-160). ↩

¹⁸⁴ Memorial, p. 177 (para. 588). ↩

¹⁸⁵ Canada-Québec Agreement on Environmental Assessment Cooperation (2010), at Exhibit RN-0010-ENG, p. 6 (clause 5). ↩

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relevant information on the projects”.¹⁸⁶ Instead, while the Agency wrote to the MELCC on 20 November 2015 to enquire about the application of the Canada-Québec Agreement,¹⁸⁷ (i) the MELCC failed to respond until after it had decided to initiate its own EA,¹⁸⁸ and (ii) the Agency failed to follow up with the MELCC.

147 Third, once Québec had established that it had an EA responsibility under the EQA that governs EAs in Québec, as the MELCC (erroneously) did in December 2015,¹⁸⁹ and where the Agency believed that it also had such responsibility under the CEAA 2012, the MELCC and the Agency were required to "cooperate until a decision has been made in this regard".¹⁹⁰ Instead, the MELCC ignored the Agency's potential EA responsibility and rushed to issue the MELCC Directive on 10 December 2015.¹⁹¹

148 Fourth, when the MELCC and the Agency “establish[ed] that they ha[d] an environmental assessment responsibility for” the GNLQ Project, they were supposed “to undertake a cooperative environmental assessment [...] administered in a manner that allows both Parties to meet the requirements of their respective legislation.”¹⁹² Specifically:

• i) The MELCC and the Agency should then have appointed "coordinators" to ensure the smooth implementation of the joint assessment,¹⁹³ and a "cooperative environmental assessment committee" in charge of managing the EA and ensuring that GNLQ provided the information required to that effect.¹⁹⁴

¹⁸⁶ Canada-Québec Agreement, at Exhibit RN-0010-ENG, p. 6 et seq. (clause 6(1)). ↩

¹⁸⁷ Letter from the Agency to the MELCC dated 20 November 2015, at Exhibit GB-0016-FRA. ↩

¹⁸⁸ Letter from the MELCC to the Agency dated 10 December 2015, at Exhibit GB-0017-FRA. ↩

¹⁸⁹ Letter from the MELCC to the Agency dated 10 December 2015, at Exhibit GB-0017-FRA. ↩

¹⁹⁰ Canada-Québec Agreement, at Exhibit RN-0010-ENG, p. 8 (clause 7(3)). ↩

¹⁹¹ MELCC, Directive for the GNLQ Project, at Exhibit C-0198-FRA. ↩

¹⁹² Canada-Québec Agreement, at Exhibit RN-0010-ENG, p. 8 (clause 8). ↩

¹⁹³ Canada-Québec Agreement, at Exhibit RN-0010-ENG, p. 8 et seq. (clause 9). ↩

¹⁹⁴ Canada-Québec Agreement, at Exhibit RN-0010-ENG, p. 9 et seq. (clause 10). ↩

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• ii) The committee should have been in charge of establishing the schedule of the joint assessment and developing consolidated guidelines for assessing the GNLQ Project (as opposed to the Agency and the MELCC issuing separate guidelines, as they did) and analysing the overall acceptability of the GNLQ Project.¹⁹⁵
• iii) The MELCC and the Agency should have notified each other immediately of any requirement to hold public hearings (either BAPE at provincial level, or review panel at federal level), following which the MELCC and the Agency would be required to “consult on the possible establishment of a joint review panel.”¹⁹⁶

149 None of these steps were taken in the present case. In particular, as explained in Section 2.3.2 below, while the Québec Minister of Environment decided to hold BAPE hearings, there were never any consultations between the MELCC and the Agency regarding the organisation of a joint review panel. On the contrary, the Agency was not even invited to participate in the BAPE hearings.

150 Finally, the Québec and federal authorities should have ensured that the decisions - and announcements – of the Québec and Federal Governments were coordinated to the extent possible, by notifying each other in advance of their decisions.¹⁹⁷ The Canada-Québec Agreement specifies in this respect that "neither Party will communicate its decisions directly to the proponent or the public without prior notification of the other Party.”¹⁹⁸ Again, there was no prior notification in this case, as explained in Section 2.3.2 below.

151 The Respondent alleges in the Counter-Memorial that “ni l'Agence, ni le MELCC n'ont exprimé d'intérêt à procéder par commission d'examen conjoint pour mener leurs évaluations environnementales respectives du projet Énergie Saguenay au lancement des processus d'évaluation

¹⁹⁵ Canada-Québec Agreement, at Exhibit RN-0010-ENG, p. 9 et seq. (clauses 10, 12 and 13). ↩

¹⁹⁶ Canada-Québec Agreement, at Exhibit RN-0010-ENG, p. 12 (clause 14). ↩

¹⁹⁷ Canada-Québec Agreement, at Exhibit RN-0010-ENG, p. 13 (clause 15). ↩

¹⁹⁸ Canada-Québec Agreement, at Exhibit RN-0010-ENG, p. 13 (clause 15(3)) (emphasis added). ↩

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environnementale en décembre 2015 et janvier 2016”.¹⁹⁹ However, that assertion is belied by the evidence.

152 The documents produced by the Respondent with its Counter-Memorial, and in document production, reveal that both the MELCC and the Agency initially acted as if the Canada-Québec Agreement was to apply:

• In its letter dated 20 November 2015, the Agency indicated that it would inform the MELCC "si une évaluation environnementale en vertu de la LCÉE 2012 est requise ou non et de voir aux modalités d'application de l'Entente de collaboration Canada-Québec en matière d'évaluation environnementale pour ce projet, le cas échéant."²⁰⁰
• During a meeting of the interministerial committee set up to assist GNLQ, on 26 November 2015, the MELCC indicated that “l'évaluation environnementale fera l'objet d'une entente de collaboration entre le provincial et le fédéral.”²⁰¹
• On 18 December 2015, the Agency informed other federal authorities that "[l] 'Entente Canada-Québec en matière d'évaluation environnementale s'applique" in relation to the assessment of the GNLQ Project.²⁰²

¹⁹⁹ Counter-Memorial, p. 159 (para. 435). ↩

²⁰⁰ Letter from the Agency to the MELCC dated 20 November 2015, at Exhibit GB-0016-FRA. ↩

²⁰¹ MEIE, GNLQ interministerial committee monitoring table dated 26 November 2015, at Exhibit C-0463-FRA, p. 4 et seq. (emphasis added). GNLQ initially relied on this representation, indicating to the public that the Canada-Québec Agreement was being applied, although it was not. See GNLQ and Transfert, meeting notes, "Comité Consultatif Sur Le Complexe De Liquéfaction De Gaz Naturel, Compte rendu de la réunion tenue à l'Hôtel le Montagnais" dated 10 March 2016, at Exhibit C-0171-FRA, p. 6 (“L’ACEE et le MDDELCC ont des processus distincts d'évaluation environnementale. Il existe une entente de coordination entre les deux agences qui tentent de suivre un calendrier semblable afin d'éviter des délais supplémentaires pour le promoteur. Ils peuvent également participer aux mêmes rencontres et se partager l'information."). ↩

²⁰² Northey II, at Exhibit CER-2 (Second), p. 28 (para. 65) (citing Agency, Information session on the GNLQ Project, 18 December 2016, at Exhibit RN-0190-FRA, p. 17 (of the PDF)). ↩

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• The MELCC and the Agency had even prepared a joint letter to inform GNLQ that there would be only one joint assessment:

  “Nous vous informons qu'il a été déterminé que le projet susmentionné est assujetti à la fois à la procédure québécoise d'évaluation et d'examen des impacts sur l'environnement (section IV.1 de la Loi sur la qualité de l'environnement) et à la Loi canadienne sur l'évaluation environnementale.
  
  Par conséquent, nous vous informons que ce projet fera l'objet d'une évaluation environnementale coopérative conformément à l'Entente de collaboration Canada-Québec en matière d'évaluation environnementale.
  
  [...]
  
  [Le comité d'évaluation environnementale coopérative] veillera à coordonner, dans la mesure du possible, les étapes d'évaluation environnementale des processus québécois et fédéral. [...]
  
  Advenant que la tenue d'une audience publique relative à ce projet est requise, le Québec et les autorités fédérales peuvent convenir d'établir une commission d'examen conjoint.”²⁰³

153 In the Counter-Memorial, the Respondent does not refer to that draft letter, produced by the Respondent in document production, nor, therefore, explain why it was never sent.

154 In sum:

• both the MELCC and the Agency knew at the end of 2015 that the Canada-Québec Agreement applied to the EA of the GNLQ Project;
• both the MELCC and the Agency accordingly took steps towards implementing the Canada-Québec Agreement;
• however, for reasons unknown to the Claimant, the MELCC changed tack in December 2015, deciding instead to initiate its own EA and the

²⁰³ Draft letter from the Agency and the MELCC to GNLQ, at Exhibit C-0471-FRA (emphasis added). ↩

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Agency followed suit in January 2016, without holding the MELCC to its prior commitments.²⁰⁴

155 Addressing the Canada-Québec Agreement from a federal perspective, Mr Northey refutes Ms Powell's attempt to downplay the importance of that agreement. He explains that the establishment by both authorities of their EA responsibilities, in December 2015 for the MELCC and in January 2016 for the Agency, automatically triggered the mandatory application of the Canada-Québec Agreement, in accordance with its clause 8(1).²⁰⁵ On the evidence, the federal and provincial authorities failed to comply with their respective obligations under that Agreement.²⁰⁶

156 Mr Northey further confirms that, regardless of the application of the Canada-Québec Agreement, the Agency should have complied with its own statutory duty under section 18 of the CEAA 2012 to offer to consult and cooperate with Québec.²⁰⁷ It failed to do so at the outset and throughout the EA process.

157 As Mr Northey explained already in his first report, the Agency's failure enabled Québec to take unilateral initiatives against federal interests, namely, to conduct public hearings, to publish the BAPE Report without involving the Agency, and, ultimately, to reject the GNLQ Project, which led to a prejudgment of the outcome of the federal EA.²⁰⁸

158 From the Québec perspective, Me Duchaine similarly confirms that the Canada-Québec Agreement was applicable in the circumstances.²⁰⁹ As she

²⁰⁴ Letter from the MELCC to the Agency dated 10 December 2015, at Exhibit GB-0017-FRA; Lettre d'Anne-Marie Gaudet (Agence) à Yves Rochon (MELCC) sur la coordination fédérale-provinciale du projet Énergie Saguenay dated 15 January 2016, at Exhibit GB-0018-FRA. ↩

²⁰⁵ Clause 8 provides that "[w]here both Parties establish that they have an environmental assessment responsibility for a project, they agree to undertake a cooperative environmental assessment." See Northey II, at Exhibit CER-2 (Second), p. 27 et seq. (para. 64). ↩

²⁰⁶ Northey II, at Exhibit CER-2 (Second), p. 28 et seq. (paras. 65-67). ↩

²⁰⁷ Northey II, at Exhibit CER-2 (Second), p. 26 (paras. 60-62). ↩

²⁰⁸ Northey I, at Exhibit CER-2, p. 27 (para. 75). ↩

²⁰⁹ Duchaine II, at Exhibit CER-1 (Second), p. 33 et seq. (paras. 117-120). ↩

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explains, Me Yergeau's argument that the agreement was non-binding is directly contradicted by:

• the purpose of the Canada-Québec Agreement and the legal requirement to conduct cooperative assessments, i.e., an assessment conducted jointly between the federal and provincial authorities;²¹⁰ and
• clause 8(1) of the Canada-Québec Agreement mentioned above, which provides for the mandatory application of the agreement upon establishment by the federal and provincial authorities of their respective EA responsibilities.²¹¹ This condition was met in relation to the GNLQ Project in December 2015 for the MELCC and in January 2016 for the Agency. However, both authorities failed to initiate the application of the Canada-Québec Agreement and went their separate ways, in breach of the agreement.²¹²

159 Me Duchaine further demonstrates that, contrary to Mr Yergeau's assertions, (i) the federal and provincial EA regimes are not irreconcilable since the Canada-Québec Agreement was established precisely to harmonise these procedures in a joint assessment;²¹³ and (ii) in practice, the use of a joint assessment was the norm rather than the exception in the context of comparator projects.²¹⁴

160 Accordingly, even if Québec's authorities considered that it had reasons to be involved in conducting the EA, quod non, the assessment should have been conducted as a joint assessment under the terms of the Canada-Québec Agreement, in which the Agency would have played a prominent role, given the predominantly federal matters involved, and should have resulted in coordinated decisions. This (correct) process would have left no room for a separate Québec Government decree based on grounds outside its jurisdiction.²¹⁵

²¹⁰ Duchaine II, at Exhibit CER-1 (Second), p. 34 et seq. (paras. 121-124). ↩

²¹¹ Duchaine II, at Exhibit CER-1 (Second), p. 36 et seq. (paras. 125-126). ↩

²¹² Duchaine II, at Exhibit CER-1 (Second), p. 37 et seq. (paras. 127-138). ↩

²¹³ Duchaine II, at Exhibit CER-1 (Second), p. 42 et seq. (paras. 140-153). ↩

²¹⁴ Duchaine II, at Exhibit CER-1 (Second), p. 47 et seq. (paras. 154-156). ↩

²¹⁵ Duchaine II, at Exhibit CER-1 (Second), p. 53 et seq. (paras. 160). ↩

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2.3.1.3 The impact of the failure to conduct a joint assessment

161 The Respondent's argument that the Claimant would not necessarily have been better off with a joint assessment is disingenuous.²¹⁶ The Respondent relies on Bilcon v. Canada in which the claimants complained that the referral of their project to a joint review panel had wrongly increased the length and costs of the process.²¹⁷ However, that comparison is inapposite.

162 In Bilcon v. Canada, the claimants contended that their project should have been evaluated under a comprehensive study conducted by the Agency, as opposed to a joint review panel process.²¹⁸ This is indeed the Claimant's primary case: here, there should have been only a single federal EA led by the Agency, with at most limited involvement from the Québec authorities.

163 Furthermore, the two cases are not comparable. The issue for the claimants in Bilcon was the additional delays and costs resulting from the joint review. For GNLQ, it was the impact of two separate, uncoordinated and desynchronised EAs, namely (i) two separate sets of questions from both authorities and, for the provincial assessment, lengthy BAPE hearings, and (ii) two desynchronised decisions whereby the first led to a prejudgment of the second, both on unjustified grounds, as further explained below (Sections 2.5 and 2.6). In that context, GNLQ evidently would have been better off with a joint assessment involving a fully coordinated approach by the Agency and the MELCC, even if it had required a joint review process.

164 Finally, in Bilcon, the joint review panel exceeded its mandate, as established in the applicable EIS guidelines for the project. The tribunal found that the panel had arbitrarily “created, without legal authority or fair notice to Bilcon, a new standard of assessment rather than fully carrying out its mandate defined by the applicable law".²¹⁹ That can hardly be

²¹⁶ Counter-Memorial, p. 179 et seq. (para. 483). ↩

²¹⁷ Bilcon of Delaware et al v. Government of Canada, PCA Case No. 2009-04, Award on Jurisdiction and Liability, 17 March 2015, at Exhibit CL-024-ENG. ↩

²¹⁸ See Bilcon v. Canada, Award on Jurisdiction and Liability, 17 March 2015, at Exhibit CL-024-ENG, p. 39 et seq. (para. 168). ↩

²¹⁹ Bilcon v. Canada, Award on Jurisdiction and Liability, 17 March 2015, at Exhibit CL-024-ENG, p. 176 et seq. (para. 591). ↩

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considered as a proper model of the type of joint assessment that the Claimant could have expected in this case.

2.3.1.4 Conclusion

165 In conclusion, as Mr Northey and Me Duchaine confirm, both from a federal law and a Québec law perspective, the GNLQ Project should have been assessed by the Agency alone because (i) it was located on federal land, and (ii) it required examination of elements that were exclusively within federal jurisdiction. Québec should never have conducted its own EA, let alone issued the Decree rejecting the GNLQ Project.

166 To the extent that Québec's involvement in the EA was justified and Québec had established that it had an EA responsibility, quod non, the process should have been conducted as a joint assessment under the Canada-Québec Agreement, in which the Agency would have played a prominent role given the predominantly federal matters involved. This process should have resulted in coordinated decisions, and would not have permitted Québec to deny the environmental authorisation on grounds outside its jurisdiction.

167 In any event, the provincial and federal authorities' failure to agree on a single federal EA or a joint assessment resulted in the improper imposition on GNLQ of two separate and desynchronised EA processes. This initial flaw tainted the entire process, creating at the outset significant risks of overlapping jurisdiction, irregularities, prejudgment and political interference. As explained below, these risks materialised at every step of each of the provincial and federal EA process.

2.3.2 The Agency and the MELCC did not cooperate meaningfully over the course of their respective assessments

168 The Respondent attempts to excuse Canada's shortcomings in not having solely a federal EA, or a joint assessment, of the GNLQ Project, by arguing that the Agency and the MELCC collaborated throughout the process.²²⁰ This is to no avail as there was no meaningful “collaboration".

²²⁰ Counter-Memorial, p. 63 et seq. (para. 172) and p. 178 et seq. (paras. 480 and 482). ↩

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169 The cooperation between the MELCC and the Agency throughout their respective EAs was, at best, superficial. The documents produced by the Respondent in document production indeed show that the “collaboration" was limited to the following:

• exchanging vague and random updates on where their respective processes stood;²²¹ and
• sharing information on discrete issues not within their respective jurisdiction.²²²

170 Tellingly, there was no cooperation between the MELCC and the Agency in relation to key milestones in their respective assessments, as illustrated by the following:

²²¹ See Email correspondence between G. Bélanger (Agency) and M. Duquette (MELCC) dated 6 May 2019, at Exhibit C-0472-FRA; Email correspondence between G. Bélanger (Agency) and M. Duquette (MELCC) from 13 September to 16 October 2019, at Exhibit C-0473-FRA; Email correspondence between J. Martin (Agency) and M. Duquette (MELCC) from 31 August to 15 December 2020, at Exhibit C-0474-FRA; Email correspondence between G. Bélanger and M. Duquette from 28 March 2019 to 29 March 2019, at Exhibit C-0475-FRA; Email correspondence between G. Bélanger (Agency) and M. Duquette (MELCC) from 13 September to 11 October 2019, at Exhibit C-0440-FRA; Email correspondence between G. Bélanger (Agency) and M. Duquette (MELCC) dated 8 November 2019, at Exhibit C-0476-FRA; Email correspondence between J. Martin (Agency) and M. Duquette (MELCC) from 21 January to 6 February 2020, at Exhibit C-0477-FRA; Email from J. Martin (Agency) to M. Duquette (MELCC) dated 19 June 2020, at Exhibit C-0478-FRA; Email from J. Martin (Agency) to M. Duquette (MELCC) dated 31 August 2020, at Exhibit C-0479-FRA; Email correspondence between J. Martin (Agency) and M. Duquette (MELCC) dated 27 April 2021, at Exhibit C-0480-FRA; Email correspondence between J. Martin (Agency) and M. Duquette (MELCC) dated 15 June 2021, at Exhibit C-0481-FRA. ↩

²²² See, e.g., Email correspondence between M. Vergara (Agency) and Y. Turgeon (MELCC) from 17 October to 6 December 2019, at Exhibit C-0482-FRA (pêche blanche); Email correspondence from M. Vergara (Agency) to Y. Turgeon (MELCC) et al. dated 6 February 2020, at Exhibit C-0483-FRA, Email correspondence between J. Martin (Agency) and M. Duquette (MELCC) from 3 February to 4 February 2021, at Exhibit C-0484-FRA (first nations). Oddly enough, M. Duquette (MELCC) shared with Ms Bélanger (Agency) an online petition against the GNLQ Project - hardly an element of "cooperation" in and of itself. Email correspondence between G. Bélanger (Agency) and M. Duquette (MELCC) dated 17 April 2019, at Exhibit C-0485-FRA. ↩

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• The MELCC did not respond to the Agency's proposal that they work together to avoid work duplication in relation to the discussions with the First Nations.²²³
• Whereas the Agency invited the MELCC to participate in the public consultations it organised, the MELCC declined to do so.²²⁴
• The Agency was not invited to contribute to or participate in the BAPE hearings.²²⁵ The DFO, which was invited and which was advising in parallel for the Agency in the federal process, complained on that occasion that the “Québec government did not agree in harmonizing its process with the [Agency's]".²²⁶

171 The only area where the federal and provincial authorities cooperated to some degree was in relation to the beluga whales. However, that cooperation was limited to two meetings in September 2020 and February 2021.²²⁷

172 Both Mr Northey and Me Duchaine confirm that the materials exchanged between the Agency and the MELCC, which were produced by the Respondent in document production and which they have reviewed, do not reflect the level of cooperation required of a cooperative EA.²²⁸

173 Furthermore, the Respondent's document production confirms that communication between the MELCC and the Agency almost stopped from March 2021 onwards, after Minister Charette's press conference during

²²³ See Email from M. Vergara (Agency) to Essipit and Mashteuiatsh representatives dated 25 February 2019, at Exhibit C-0486-FRA. ↩

²²⁴ Email correspondence from G. Bélanger to M. Duquette from 21 May 2019 to 23 May 2019, at Exhibit C-0487-FRA. ↩

²²⁵ Email correspondence between J. Martin (Agency) and M. Duquette (MELCC) from 31 August to 15 December 2020, at Exhibit C-0474-FRA, Email correspondence between J. Martin (Agency) and M. Duquette (MELCC) from 13 February 2020 to 24 February 2020, at Exhibit C-0488-FRA. ↩

²²⁶ Email correspondence between the DFO and the Agency dated 22-23 September 2020, at Exhibit C-0489-ENG. ↩

²²⁷ See Agency, Report of meeting between Agency, PC, TC, DFO and MELCC dated 4 September 2020, at Exhibit C-0490-FRA and Agency, Report of meeting between Agency, TC, PC, DFO, MELCC and MFFP dated 3 February 2021, at Exhibit C-0491-FRA. ↩

²²⁸ Northey II, at Exhibit CER-2 (Second), p. 31 (paras. 71-72); Duchaine II, at Exhibit CER-1 (Second), p. 40 et seq. (paras. 136). ↩

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which he announced three “core criteria” to be met for the Project to go forward. Notably, the MELCC declined to organise a meeting between its own experts and those of the Agency on GHG emissions, despite the Agency's requests.²²⁹

174 Québec's decision to refuse to authorise the GNLQ Project came without prior warning, including to the Agency and its experts whom it left in disarray. This is confirmed by an internal email from the DFO reporting on a discussion with the Agency, during which the Agency indicated that “c'est la 1ère fois que la décision du Québec et de l'Agence sont désynchronisées de la sorte”.²³⁰ The Agency was so perplexed by the situation that it decided to suspend the publication of its Report to “analyser les implications de la décision du gouvernement du Québec”.²³¹

175 In other words, the collaboration between the Agency and the MELCC was far from what was required for a cooperative assessment under the Canada-Québec Agreement, and certainly did not achieve its main purpose. This failure of coordination, in turn, led the Federal Government to upend its own assessment and to prejudge its outcome so as to reach the same conclusion as the Québec Government, as further explained in Section 2.6.1 below.

2.3.3 GNLQ was not in a position to challenge Canada's and Québec's decision to conduct parallel EA processes

176 The Respondent's argument that GNLQ never complained about or challenged the conduct of two separate EAs at the time is disingenuous.²³²

177 As explained by Mr Le Verger, GNLQ was not even aware of the decision by the Québec and federal authorities not to conduct a joint assessment and

²²⁹ Email correspondence between J. Martin (Agency) and M. Duquette (MELCC) from 27 April to 25 May 2021, at Exhibit C-0492-FRA; Email correspondence between J. Martin and M. Duquette dated 27 April 2021, at Exhibit C-0493-FRA. ↩

²³⁰ Internal DFO email dated 3 August 2021, at Exhibit C-0470-FRA (emphasis added). ↩

²³¹ Email correspondence between the Agency, the DFO et al. from 22 July 2021 to 3 August 2021, at Exhibit TLV-0155-FRA. ↩

²³² Counter-Memorial, p. 165 et seq. (paras. 452, 482). ↩

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thus could not have challenged it.²³³ The Respondent only provided some indication of what really happened for the first time with its Counter-Memorial. Furthermore, it would have made no sense for GNLQ to antagonise the authorities in charge of conducting the EA of the GNLQ Project at the outset by questioning their jurisdiction and choice of EA process. In any event, there was no reason to challenge the manner in which the assessment was organised or conducted because, at least initially, it did not appear to prejudice GNLQ. On the contrary, the authorities' support for the Project suggested that they would conduct the process efficiently and in accordance with the law.

178 Neither the Respondent nor its expert on federal law, Ms Powell, refer to any case where the proponent of a project has successfully challenged the authorities' choice of process for the EA.

2.4 The MELCC Directive and the Agency's EIS Guidelines were binding and defined the scope of the environmental assessment and decision-making

179 Notwithstanding the decisions to proceed with two separate EAs of the GNLQ Project, in violation of Canadian constitutional law and against established practice (as explained in Section 2.3 above), both the MELCC and the Agency were bound to carry out their respective assessments within the scope defined by the MELCC Directive and the EIS Guidelines, respectively.

180 As explained in the Memorial and in the first reports of Mr Northey and Me Duchaine, the Agency's EIS Guidelines and the MELCC Directive, both issued in March 2016, were critical documents. They established the four corners within which the MELCC and the Agency were required to conduct their EAs of the GNLQ Project and subject to which the Federal and Québec Governments could exercise their discretion to approve or reject the GNLQ Project.²³⁴

²³³ Le Verger II, at Exhibit CWS-3 (Second), p. 29 (para. 84). ↩

²³⁴ Memorial, p. 187 et seq. (para. 624); Northey I, at Exhibit CER-2, p. 28 et seq. (paras. 78-85); Memorial, p. 227 (para. 739); Duchaine I, at Exhibit CER-1, p. 5 and p. 80. ↩

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181 The Respondent in the Counter-Memorial, and its experts in their reports, argue the opposite. Specifically, they contend that:

• the MELCC Directive and the EIS Guidelines were not binding and their content could be updated over time;²³⁵ and
• the MELCC Directive and the EIS Guidelines had no impact on the Canadian and Québec Government's discretion in reaching a decision.²³⁶

182 Mr Northey and Me Duchaine demonstrate in their second reports that these arguments are incorrect as a matter of federal and Québec law. Contrary to the Respondent's assertions, the MELCC Directive and EIS Guidelines were binding on the authorities (Section 2.4.1) and should have limited the parameters of the assessment process as described below, and the bases upon which the final decisions could be made, at both the provincial (Section 2.4.2) and federal levels (Section 2.4.3).

2.4.1 The MELCC Directive and the EIS Guidelines were binding on State authorities

183 At the provincial level, in support of the Respondent's position, Me Yergeau argues that the MELCC Directive was a standardised instruction applicable to categories of projects creating a broad framework for the proponent that could evolve over time. As Me Duchaine explains, this contention is legally unfounded.²³⁷

184 The only case cited by Me Yergeau in support of his position confirms that directives issued by the MELCC are, in the words of the Québec Court of Appeal, meant to determine “the parameters within which [the Minister of Environment] intended to exercise his discretion".²³⁸

²³⁵ Counter-Memorial, p. 29 et seq. (paras. 78, 92, 117) and p. 183 (para. 492). ↩

²³⁶ Counter-Memorial, p. 31 et seq. (paras. 85, 97). ↩

²³⁷ Duchaine II, at Exhibit CER-1 (Second), p. 99 et seq. (paras. 272-284). ↩

²³⁸ Québec (Procureur général) c. Gestion environnementale Nord-Sud inc., 2012 QCCA 357 dated 31 December 2012, at Exhibit MY-0026-FRA, 25 of the PDF (para. 104) (emphasis added) cited in Duchaine II, at Exhibit CER-1 (Second), p. 101 et seq. (para. 280), ↩

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185 As for Me Duchaine's position that the MELCC Directive was binding on the MELCC and the Québec Government, it is well supported by case law, including from the Supreme Court of Canada.²³⁹ She observes that Me Yergeau himself, in one of his decisions as a judge, emphasised that directives issued by a Minister, like the MELCC Directive, should not be construed as mere guidelines or instructions.²⁴⁰

186 As Me Duchaine also observes, Me Yergeau's argument that the MELCC Directive was in this case a standard directive is contradicted by the evidence.²⁴¹ Comparing the standard template for directives produced by the Respondent in document production, with the MELCC Directive, she notes that there were substantial deviations, and that the MELCC Directive was clearly adapted to the GNLQ Project.²⁴² She concludes that the MELCC made deliberate choices as to what it wanted to include in, or exclude from, the MELCC Directive.²⁴³

187 At the federal level, Mr Northey shows that, contrary to Ms Powell's contention, the binding nature of the EIS Guidelines results from the CEAA 2012. More specifically section 19(2) of the CEAA 2012 defines the "scope of the factors to be taken into account" in the determination of the environmental effects of a designated project, the significance of those effects and the measures that are technically and economically feasible to mitigate those effects.²⁴⁴ He notes that the EIS Guidelines themselves indicate that their purpose is to “specif[y] the nature, scope and extent of the information required” for the EIS and the EA as a whole.²⁴⁵

188 Mr Northey refers to case law supporting his opinion, including a recent case relating to the Bay du Nord project, in which the Federal Government defended its prerogative under the CEAA 2012 to define the scope of an

²³⁹ Duchaine II, at Exhibit CER-1 (Second), p. 100 et seq. (paras. 278-284). ↩

²⁴⁰ Duchaine II, at Exhibit CER-1 (Second), p. 100 (para. 277). ↩

²⁴¹ Duchaine II, at Exhibit CER-1 (Second), p. 104 (para. 285). ↩

²⁴² Duchaine II, at Exhibit CER-1 (Second), p. 104 (para. 285). ↩

²⁴³ Duchaine II, at Exhibit CER-1 (Second), p. 104 (para. 287). ↩

²⁴⁴ Northey II, at Exhibit CER-2 (Second), p. 36 et seq. (paras. 84-89). ↩

²⁴⁵ Northey II, at Exhibit CER-2 (Second), p. 13 et seq. (paras. 28) and p. 36 et seq. (para. 85); Agency, Guidelines for the Preparation of an Environmental Impact Statement for the GNLQ Project dated 14 March 2016, at Exhibit C-0199-ENG, p. 1. ↩

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EA through the preparation of the guidelines.²⁴⁶ More specifically, the Federal Government defended the Agency's decision to exclude maritime navigation from the guidelines, and thus from the scope of the EA.²⁴⁷ The Federal Court upheld these views as reflecting federal law.²⁴⁸

189 Mr Northey also clarifies that, contrary to Ms Powell's statement, he never opined that the EIS Guidelines could not be amended.²⁴⁹ He agrees that they could have been amended under certain conditions, but notes that the necessary process was not followed in the present case.²⁵⁰ He notes in particular that, in the six cases he identified in which EIS guidelines have been amended, “the amending document was expressly called an amendment to the EIS guidelines", and was in all but one case sent before the proponent's submission of its EIS,²⁵¹ and not after as for GNLQ. Accordingly, Mr Northey concludes that the EIS Guidelines were never amended.²⁵²

190 The binding nature of the EIS Guidelines and the MELCC Directive affected how the federal and provincial authorities were entitled to conduct their EAs, as discussed below.

2.4.2 The provincial (Québec) EA process and Decree

191 The provincial (Québec) EA process under the EQA can be summarised as follows.

192 Avis de projet: The Parties agree that the EA process begins with the notification by the proponent of an Avis de projet.²⁵³ This notice, which effectively comprises the proponent's application for an environmental authorisation, contains a detailed description of the project's characteristics to enable the MELCC to prepare a directive. As Me Duchaine notes in her

²⁴⁶ Northey II, at Exhibit CER-2 (Second), p. 37 (para. 86). ↩

²⁴⁷ Northey II, at Exhibit CER-2 (Second), p. 37 (para. 86). ↩

²⁴⁸ Northey II, at Exhibit CER-2 (Second), p. 37 (para. 86). ↩

²⁴⁹ Northey II, at Exhibit CER-2 (Second), p. 38 (paras. 88-89). ↩

²⁵⁰ Northey II, at Exhibit CER-2 (Second), p. 38 (para. 89). ↩

²⁵¹ Northey II, at Exhibit CER-2 (Second), p. 38 (para. 89). ↩

²⁵² Northey II, at Exhibit CER-2 (Second), p. 38 (para. 89). ↩

²⁵³ Counter-Memorial, p. 29 (para. 77); GNLQ, Avis de projet, at Exhibit C-0197-FRA. ↩

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second report,²⁵⁴ GNLQ's avis de projet, contained references to (i) the impact of the GNLQ Project on GHG emissions, (ii) GNLQ's aspiration that the GNLQ Project would help foster the energy transition, and (iii) the potential impact of the GNLQ Project on beluga whales.²⁵⁵

193 Directive: Following the avis de projet, the Minister of Environment prepares and communicates to the proponent a directive indicating “the nature, scope and extent of the environmental impact statement”.²⁵⁶ As explained above, this directive, here the MELCC Directive, is a binding document, which determines not only the boundaries of the EA, but also those of the Québec Government's ultimate decision.²⁵⁷ Hence, the Minister of Environment could – and should – have included in the MELCC Directive all of the issues on which the Québec Government eventually – in the event, wrongly – based its Decree (provided that these were part of its jurisdiction). The Minister was aware of these issues because they were all mentioned in GNLQ's Avis de projet.²⁵⁸ However, the Minister chose not to include them in the directive, thereby limiting the scope of the EA, and of the Québec Government's decision, to those issues that were mentioned in the MELCC Directive.²⁵⁹

194 EIS: Following the issuance of the ministerial directive, the proponent prepares and submits its EIS. As explained in the Memorial, the EIS is a lengthy and detailed submission which requires significant time, cost and expertise to prepare.²⁶⁰ GNLQ had a team of experts working on this submission over three years.²⁶¹ The MELCC will first review the EIS to ensure that it is admissible, i.e. that the proponent has provided the information requested under the directive.²⁶² In doing so, the MELCC is

²⁵⁴ Duchaine II, at Exhibit CER-1 (Second), p. 25 (para. 92). ↩

²⁵⁵ GNLQ, Avis de projet, at Exhibit C-0197-FRA, p. 23-25 (GHG emissions), p. 9 (energy transition), p. 46 (beluga whales). ↩

²⁵⁶ Counter-Memorial, p. 29 et seq. (para. 78). ↩

²⁵⁷ MELCC Directive, at Exhibit C-0198-FRA. ↩

²⁵⁸ Duchaine II, at Exhibit CER-1 (Second), p. 25 (para. 92). ↩

²⁵⁹ Duchaine II, at Exhibit CER-1 (Second), p. 25 (paras. 92-93). ↩

²⁶⁰ Memorial, p. 57 et seq. (paras. 152-154). ↩

²⁶¹ EIS, at Exhibit C-0043-FRA. ↩

²⁶² Counter-Memorial, p. 29 (para. 79). ↩

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entitled to request the opinion of other ministries and agencies, ask questions to, and request additional information from, the proponent.²⁶³ As Mr Le Verger explains in his second witness statement, GNLQ had decided to provide as much information as possible in its EIS, including information not requested in the MELCC Directive (or the EIS Guidelines for that matter), for several reasons: (i) for the sake of transparency, (ii) to pre-empt possible questions from the MELCC and the Agency and accelerate the assessment, and (iii) to provide the MELCC and the Agency information they needed for internal/policy-making purposes.²⁶⁴

195 Declaration of admissibility of the EIS: If the MELCC considers the EIS to contain the information requested, it declares the EIS admissible. As Me Duchaine notes, the declaration of admissibility of the GNLQ Project EIS was conditional upon the Minister of Environment's confirmation that the EIS properly addressed the issues raised in the MELCC Directive. Had the Minister not been satisfied, he could and should have pointed it out then, by judging the EIS inadmissible, which he did not.²⁶⁵

196 Parallel BAPE hearings and EA: Following the declaration of admissibility and depending on the size of the project, the MELCC may request that the BAPE hold public hearings. Given the size of the GNLQ Project and its importance for Québec, GNLQ knew BAPE hearings would be necessary and asked that the MELCC make that request, to save time.²⁶⁶ In the context of the BAPE hearings, the MELCC and the BAPE can ask questions and request information beyond the scope of the ministerial directive.²⁶⁷ The same goes for the Minister of Environment.²⁶⁸ However, neither the Minister of Environment nor the Québec Government can base their recommendation and decision, respectively, on information that is

²⁶³ Counter-Memorial, p. 29 (para. 79). ↩

²⁶⁴ Le Verger II, at Exhibit CWS-3 (Second), p. 27 et seq. (para. 79). ↩

²⁶⁵ Duchaine II, at Exhibit CER-1 (Second), p. 104 (paras. 287) and p. 107 (para. 298). ↩

²⁶⁶ Counter-Memorial, p. 29 et seq. (paras. 79-84). ↩

²⁶⁷ Duchaine II, at Exhibit CER-1 (Second), p. 142 (para. 379) ("Il existe [...] une distinction importante à faire entre, d'une part, le pouvoir d'un organe de colliger toute information pertinente dans le cadre d'une évaluation environnementale et, d'autre part, celui de rendre une décision en tenant compte uniquement des impacts relevant de sa compétence"). ↩

²⁶⁸ Duchaine II, at Exhibit CER-1 (Second), p. 142 (para. 379). ↩

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outside the scope of the directive, which continues to set the permissible basis for the Québec Government's decision.²⁶⁹

197 BAPE's report: The BAPE's report is issued after the BAPE public hearings. The BAPE's report is meant to inform the Minister of Environment's recommendation to the Government and thus the Québec Government's decision. Therefore, only those recommendations and conclusions that fall within the scope of the ministerial directive can be taken into account by the MELCC, and in turn the Minister and the Québec Government. Documents produced by the Respondent in document production show that, in the case of the GNLQ Project EA, the BAPE made a number of recommendations on points, including global GHG emissions and the energy transition, that were outside the scope of the EA as defined by the MELCC Directive. This was specifically identified by the MELCC at the time.²⁷⁰

198 MELCC's report: The MELCC's report concludes the EA and is submitted to the Minister of Environment for his/her review. In the same vein as the BAPE's report, however, the MELCC's report must remain within the scope of the directive. As explained in Section 2.5.4.3 below, in the case of the GNLQ Project, four of the five issues raised in the MELCC Report on which the Québec Government relied to reject the GNLQ Project were outside the scope of the MELCC Directive, and it admitted that it had not even relied on the fifth ground, social acceptability, for its decision.

199 Recommendation of the Minister of Environment to the Government: On the basis of the BAPE's report and the MELCC's report, the Minister of Environment makes a recommendation to the Québec Government. The Parties agree that the Minister is not bound by either the MELCC's report or the BAPE's report.²⁷¹ However, it is his/her responsibility to ignore

²⁶⁹ Duchaine II, at Exhibit CER-1 (Second), p. 142 (para. 379). ↩

²⁷⁰ [Redacted] at Exhibit TLV-0111-FRA, p. 7 et seq. (Nos. 13, 14, 16, 17, 18, 22, 24), [Redacted] at Exhibit C-0494-FRA. See also [Redacted] at Exhibit TLV-0111-FRA, p. 3 et seq. (Nos. 7, 8, 36, 48, 49). ↩

²⁷¹ Counter-Memorial, p. 31 et seq. (para. 85). ↩

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elements in these reports that are outside the scope of the directive and ensure that his/her recommendation does not exceed that scope.²⁷² As explained in Section 2.5.3.4 below, in document production, the Respondent has refused to produce the Minister of Environment's recommendation.²⁷³ However, the fact that the Québec Government made a decision based on criteria outside the scope of the MELCC Directive itself strongly suggests that the Minister's recommendation was not in line with the MELCC Directive.

200 Decision of the Government: The Parties agree that there is a degree of discretion in the decision of the Government to authorise or reject an application for an environmental authorisation.²⁷⁴ However, again this discretion can only be exercised within, and is limited by, the ministerial directive, and thus here could only be exercised subject to the MELCC Directive issued for the GNLQ Project.²⁷⁵ As demonstrated in Section 2.5.4.1 below, the Québec Government exceeded its discretion in denying GNLQ's application on grounds outside this margin of discretion.

2.4.3 The federal EA process and decision

201 The federal EA process under the CEAA 2012, which was the legislative regime applicable to the GNLQ Project, can be summarised as follows.

202 Project Description: the Parties agree that at the federal level, the EA process commences with the proponent submitting an application for an environmental authorisation comprising a “Project Description", which is similar to the Avis de projet. GNLQ submitted the same document to both the MELCC and the Agency.²⁷⁶

203 Determination: The Project Description is followed by the Agency's decision of whether an EA is required and, if so, the Agency's preparation

²⁷² Duchaine II, at Exhibit CER-1 (Second), p. 149 (paras. 390-393). ↩

²⁷³ See PO4, Annex A, p. 40 (Request 8). ↩

²⁷⁴ Counter-Memorial, p. 31 et seq. (para. 85). ↩

²⁷⁵ Duchaine II, at Exhibit CER-1 (Second), p. 98 et seq. (paras. 272-288). ↩

²⁷⁶ Counter-Memorial, p. 99 et seq. (paras. 272-288). ↩

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of guidelines.²⁷⁷ To that end, the Agency invites the public to provide comments on the potential impact of the project on the environment.²⁷⁸

204 EIS Guidelines: The preparation of the EIS guidelines is a complex process, which requires public consultations.²⁷⁹ The Agency has the power to exclude from the EA certain aspects of the project within its jurisdiction. This is what the Agency did in the case of the GNLQ Project: in the EIS Guidelines, it expressly stated that it was excluding maritime shipping and the production of upstream GHG emissions from the scope of the EA, meaning that GNLQ did not need to consider those aspects in its EIS and the authorities could not consider them when assessing the GNLQ Project and deciding whether to authorise it.²⁸⁰

205 EIS: The proponent of the project must then submit an EIS. GNLQ submitted its EIS in January 2019.²⁸¹ Like the MELCC, the Agency must determine, following an initial review, whether the EIS is in line with the EIS guidelines, which it did in the case of the GNLQ Project in May 2019.²⁸²

206 Public consultations: When the EIS is deemed complete, the Agency again organises public consultations regarding the potential environmental

²⁷⁷ Counter-Memorial, p. 33 et seq. (para. 91). ↩

²⁷⁸ Agency, Public Notice for the GNLQ Project dated 3 December 2015, at Exhibit GB-0021-FRA. ↩

²⁷⁹ Counter-Memorial, p. 33 et seq. (para. 91). ↩

²⁸⁰ Northey II, at Exhibit CER-2 (Second), p. 39 et seq. (paras. 92-94). See also EIS Guidelines, at Exhibit C-0199-ENG, p. 4 (“Marine shipping associated with the Project that is beyond the care and control of GNL Québec and production of upstream GHGs are not considered to be part of the Project for the purposes of the environmental assessment. As a result, the Minister will not make a decision under CEAA 2012 about whether that [sic] marine shipping associated with the Project or the production of upstream GHGs that are likely to cause significant adverse environmental effects, and it will not be subject to conditions issued to the proponent in any decision statement allowing the Project to proceed. However, those activities are within the jurisdiction of the federal government. The environmental assessment will act as a means for the federal government to collect information on the effects of those activities associated with the Project for use by programs or activities within federal jurisdiction.”). ↩

²⁸¹ EIS, at Exhibit C-0043-FRA. ↩

²⁸² Counter-Memorial, p. 34 (para. 94). ↩

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effects of the project.²⁸³ In the case of GNLQ, these consultations were completed by the Agency in June 2019.

207 EA: The EA is conducted by the Agency, which consults other federal agencies or ministers. In the present case, this assessment lasted for over two years. As Mr Northey explains, although the EIS guidelines prepared by the Agency guide the assessment, there is a distinction between information gathering and decision making as part of the EA process.²⁸⁴ The Agency can gather information on points not included in the guidelines, as “additional matters” under section19(1)(j) of the CEAA 2012.²⁸⁵ However, the Agency cannot use the information gathered for the purpose of advising the Minister of Environment in relation to its decision, as this would contradict the EIS Guidelines.²⁸⁶ Thus, even though the Agency excluded maritime shipping and upstream GHG emissions from the scope of the EA for the purpose of decision-making, Section 3.2.1 of the Guidelines clarifies that the Agency can ask GNLQ to provide information on those subjects.²⁸⁷

208 Agency's report: As a final step in its process, and similar to the MELCC's report, the Agency's report summarises the EA process and makes recommendations to the federal Minister of Environment in light of the environmental effects of the project and the mitigation measures identified by the Agency and the proponent. The Agency must ensure that its report remains within the scope of the EIS guidelines. It cannot make recommendations based on potential environmental effects not identified in, or excluded from, the EIS guidelines.²⁸⁸ In this respect, the Respondent's characterisation in its Counter-Memorial of the Agency's report as solely determining whether the project will cause significant environmental effects is misleading.²⁸⁹ Under the CEAA 2012, the Agency must also determine whether there are measures that are technically and

²⁸³ Counter-Memorial, p. 34 et seq. (para. 95). ↩

²⁸⁴ Northey II, at Exhibit CER-2 (Second), p. 38 et seq. (paras. 91-95, 100, 124). ↩

²⁸⁵ Northey II, at Exhibit CER-2 (Second), p. 40 (para. 95). ↩

²⁸⁶ Northey II, at Exhibit CER-2 (Second), p. 40 et seq. (paras. 95, 100). ↩

²⁸⁷ Northey II, at Exhibit CER-2 (Second), p. 40 et seq. (paras. 95, 100). ↩

²⁸⁸ Northey II, at Exhibit CER-2 (Second), p. 41 (paras. 100-101). ↩

²⁸⁹ Counter-Memorial, p. 35 para. 96. ↩

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economically feasible, which could mitigate such significant adverse effects.²⁹⁰ In the case of the GNLQ Project, the Agency issued a draft of its report dated August 2021 and, following a period of public consultation, a final version dated 30 November 2021.²⁹¹

209 Referral by the federal Minister of Environment to the federal Cabinet for decision: The Respondent's contention that the Minister of Environment must refer the decision whether to authorise a project to the federal Cabinet if he/she considers that it may cause significant environmental effects that cannot be mitigated, is incomplete and thus misleading.²⁹² The Minister of Environment must indeed first ensure (i) that these significant effects are within the scope set by the EIS guidelines, and (ii) that these significant effects cannot be mitigated. Only in that case, must he/she refer the decision to the federal Cabinet. However, where he/she considers that there are no significant effects or that those effects may be mitigated, the Minister of Environment has no other choice but to approve the project.²⁹³

210 Decision by the federal Cabinet: Like the Québec Government, the federal Cabinet enjoys a degree of discretion in its decision.²⁹⁴ However, the Respondent's contention that this margin of discretion is wide and immune from judicial review is incorrect.²⁹⁵ Mr Northey disagrees with Ms Powell in this regard and confirms that the federal Cabinet's discretion can only be exercised within the boundaries of the EIS Guidelines.²⁹⁶ He also shows that decisions from the federal Cabinet are often subject to judicial review, notably in circumstances where the Agency's report is deficient.²⁹⁷ In the present case, the federal Cabinet made its decision on 3

²⁹⁰ CEAA 2012, at Exhibit RN-0012-ENG, p. 7 (of the PDF) (Article 19(1)(d)). ↩

²⁹¹ Agency, Environmental Assessment Report (November 2021), at Exhibit C-0037-ENG. ↩

²⁹² Counter-Memorial, p. 35 (para. 96). ↩

²⁹³ Northey II, at Exhibit CER-2 (Second), p. 9 et seq. (para. 18). ↩

²⁹⁴ Counter-Memorial, p. 35 (para. 97). ↩

²⁹⁵ Counter-Memorial, p. 35 (para. 97). ↩

²⁹⁶ Northey II, at Exhibit CER-2 (Second), p. 53 et seq. (paras. 137-148). ↩

²⁹⁷ Northey II, at Exhibit CER-2 (Second), p. 14 et seq. (paras. 29-32). ↩

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February 2022,²⁹⁸ and the Minister of Environment issued the Decision Statement.²⁹⁹ As demonstrated in Section 2.6.2 below, the federal Cabinet exceeded its discretion in denying GNLQ's application for an environmental authorisation.

211 As explained below, many of the irregularities with the provincial and federal EAs derived from the Québec and Canadian authorities' disregard for the above processes, and specifically the scope imposed on their respective EA by the MELCC Directive and the EIS Guidelines, which were key safeguards against arbitrariness in the EA process. This, in turn, caused the Québec and the Federal Governments to make decisions based on unlawful grounds.

2.5 The multiple irregularities in the provincial EA process of the GNLQ Project culminated in an illegal decision by the Québec Government

212 As explained in Section 2.3 above, the main irregularity affecting Québec's EA of the GNLQ Project is that it should not have existed as a self-standing process in the first place. There should have been only one EA, either conducted by the Agency alone or as a joint assessment by the federal and provincial authorities in accordance with the Canada-Québec Agreement.

213 In addition, the Québec EA process was marred with irregularities, notably caused by the Québec authorities' failure to assess the GNLQ Project in accordance with the criteria set out in the MELCC Directive, which, as explained in Section 2.4.1 above, were binding on the MELCC, the Minister of Environment and the Québec Government.

214 In particular, the MELCC required GNLQ to conduct a type of cost-benefit analysis (Analyse avantage-coûts or AAC), which, according to

²⁹⁸ Government of Canada, "Énergie Saguenay, Orders in Council” dated 3 February 2022, at Exhibit RN-0030-ENG; Agency, Press Release "Government of Canada Releases the Final Decision on the Energie Saguenay Project", 7 February 2022, at Exhibit C-0295-ENG. ↩

²⁹⁹ Minister of the Environment, "Decision Statement Issued under Section 54 of the CEAA, 2012 for the Énergie Saguenay Project" dated 7 February 2022, at Exhibit RN-0004-ENG. ↩

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Me Duchaine, had never been used in an EA of this nature before and was outside the scope of the MELCC Directive (Section 2.5.1).

215 As demonstrated in the Memorial, the BAPE conducted biased hearings further to the Québec Government's presentation of opponents to the GNLQ Project as representatives of the MFFP.³⁰⁰ Documents produced by Canada in document production belie the Respondent's assertion that there was nothing untoward with this approach, but also evidence that the BAPE Report was largely outside the scope of the MELCC Directive (Section 2.5.2).³⁰¹

216 After the BAPE hearings and the publication of a biased BAPE Report, the assessment was again disrupted, this time by the political interference of the Québec Minister of Environment, Minister Charette, who purported to impose on GNLQ three new “core criteria”, which he announced during a press conference; these had already been rejected by the MELCC as already implemented or falling outside of the scope of the MELCC Directive (Section 2.5.3).

217 The Québec Government then doubled down on those irregularities by rejecting the GNLQ Project in a decision based on the new, and otherwise flawed, core criteria issued by Minister Charette, the cost-benefit analysis improperly imposed by the MELCC and the alleged impact of the GNLQ Project on beluga whales, an issue falling manifestly outside its jurisdiction (Section 2.5.4).

2.5.1 The MELCC's unlawful and unprecedented request for a cost-benefit analysis in May 2019

218 In his witness statement filed in support of the Counter-Memorial, Mr Michel Duquette, the analyst who was in charge of the MELCC's EA, addresses the basis for the MELCC's decision to reject the GNLQ Project. In particular, he provides more details on the MELCC's conclusion based on a cost-benefit analysis initially requested from GNLQ on

³⁰⁰ Memorial, p. 78 et seq. (paras. 221-243). ↩

³⁰¹ Counter-Memorial, p. 48 (paras. 127). ↩

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22 May 2019,³⁰² namely that it could not formulate a recommendation concerning the GNLQ Project from a cost-benefit perspective.³⁰³ He explains that the analysis took the form of a table summarising the costs and advantages of the GNLQ Project for the populations of the Saguenay region, Québec and Canada.³⁰⁴

219 However, as Me Duchaine explains in her second report, both the MELCC's request for, and its reliance on, this (flawed) cost-benefit analysis were unlawful.

220 First, as confirmed by Me Duchaine, who reviewed the methodology used by the MELCC, the type of cost-benefit analysis requested here, is usually carried out at the beginning of public works projects; it is inadequate for the assessment of private projects, and was thus improper in this case.³⁰⁵ GNLQ's consultant, WSP, had pointed this out to the MELCC from the beginning (in August 2019), refusing to conduct this analysis, but the MELCC had maintained the request for the analysis.³⁰⁶

221 Me Duchaine notes in this regard that, although the MELCC Directive included the consideration of the costs and the benefits of the GNLQ Project, it did not refer to the type of cost-benefit analysis ultimately

³⁰² MELCC, Questions and Comments (1st series) (22 May 2019), at Exhibit C-0204-FRA, p. 25 et seq. (QC-85). ↩

³⁰³ Witness Statement of Michel Duquette dated 12 July 2024, at Exhibit RWS-5, p. 33 (para. 70). ↩

³⁰⁴ Duquette, at Exhibit RWS-5, p. 32 (paras. 68, Figure 2). ↩

³⁰⁵ Duchaine II, at Exhibit CER-1 (Second), p. 128 et seq. (paras. 339-341). ↩

³⁰⁶ MELCC, Compilation of opinions from the consultation of ministries and organisations concerning the GNLQ Project (October 2019), at Exhibit CD-0106-FRA, p. 72 of the PDF ("Dans ses réponses à nos commentaires, l'initiateur mentionne que: 'En ce qui a trait à l'analyse avantages-coûts, les paramètres du guide du MTQ ainsi que la méthodologie associée sont prescrits pour de grands projets de dépenses publiques. Conséquemment, ils ne s'appliquent pas pour un projet d'investissement privé qui constitue un transfert de richesse entre agents économiques et non une sortie de fonds (dépense) provenant du gouvernement. Conséquemment, le ratio coûts-bénéfices n'a donc pas été calculé.”). ↩

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imposed on GNLQ,³⁰⁷ as the MELCC admitted in the document compiling the experts' opinions on the admissibility of GNLQ's EIS.³⁰⁸

222 In Me Duchaine's opinion, it was improper for the MELCC to impose on GNLQ a cost-benefit analysis of this nature, at such a late stage in the assessment, with so many variables to be addressed, some of which contradictory.³⁰⁹

223 Based on her review of similar projects from 2001 to 2017, she points out that a cost-benefit analysis had never been imposed on a proponent, regardless of whether the project was public or private, before GNLQ.³¹⁰ The MELCC started requesting such analyses in 2018, for the Gazoduq Project, but only as an option and not as a requirement.³¹¹ She also notes that, since then, it has only been put forward once by a proponent (the Québec tramway project); however, (i) this was a public project with a significant public interest component and (ii) the request was put forward timely, at the very beginning of the assessment.³¹²

224 Second, as Mr Le Verger explains, the MELCC did not indicate that the cost-benefit analysis requested from GNLQ would form part of the MELCC Report, let alone the Decree.³¹³ In fact, GNLQ and its consultant, WSP, were surprised by the MELCC's request because indeed this was a

³⁰⁷ Duchaine II, at Exhibit CER-1 (Second), p. 129 (para. 343). ↩

³⁰⁸ MELCC, Compilation of opinions from the consultation of ministries and organisations concerning the GNLQ Project (October 2019), at Exhibit CD-0106-FRA, p. 72 ("Comme cette exigence n'a pas été expressément demandée dans la directive, l'initiateur pourra exceptionnellement déposer son analyse avantages-coûts (AAC) au plus tard à l'étape de l'analyse environnementale du projet."). See also Duchaine II, at Exhibit CER-1 (Second), p. 130 (para. 344). ↩

³⁰⁹ Duchaine II, at Exhibit CER-1 (Second), p. 130 (paras. 345). ↩

³¹⁰ Duchaine II, at Exhibit CER-1 (Second), p. 140 et seq. (paras. 369-371 and 375-376). ↩

³¹¹ Duchaine II, at Exhibit CER-1 (Second), p. 141 (paras. 372-374). ↩

³¹² Duchaine II, at Exhibit CER-1 (Second), p. 141 (para. 375). ↩

³¹³ Le Verger II, at Exhibit CWS-3 (Second), p. 50 (para. 156). ↩

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private project.³¹⁴ WSP had emphasised the same in its response to the MELCC.³¹⁵

225 Third, when submitting GNLQ's cost-benefit analysis in August 2019, with the above reservation, WSP had indicated that one positive aspect of the GNLQ Project, relating to the increased competitiveness of Québec companies, could not be quantified because it would require a specific study.³¹⁶ The MELCC did not request that additional information, or any further studies on this topic.

226 Fourth, GNLQ's analysis showed that the Project would entail overwhelming economic benefits for Québec of more than CAD 75 billion. The MELCC itself was forced to admit that “il est probable que le projet dégage plus d'avantages économiques que de coûts pour la société québécoise.”³¹⁷ Despite this, the MELCC concluded that it could not make a clear recommendation, including (as one of the reasons) because the cost-benefit analysis did not include unspecified “impacts difficilements quantifiables et non-négligeables" such as the unquantified and unsupported by data or scientific research impact of the Project on biodiversity, as well as unquantified and unspecified “impacts hors-Québec".³¹⁸

227 To conclude, the MELCC:

• required that GNLQ carry out an ill-defined and unprecedented cost-benefit analysis, very late in the assessment process, in May 2019;
• ended up with an incomplete and flawed analysis, which nonetheless indicated that the GNLQ Project had an overwhelmingly positive impact on Québec; but

³¹⁴ Le Verger II, at Exhibit CWS-3 (Second), p. 50 (para. 157). ↩

³¹⁵ WSP, Answers to the MELCC's Request for additional information (cost-benefit analysis), at Exhibit CD-0127-FRA, p. 1 et seq.; Le Verger II, at Exhibit CWS-3 (Second), p. 50 (para. 157). ↩

³¹⁶ WSP, Answers to the MELCC's Request for additional information (cost-benefit analysis), at Exhibit CD-0127-FRA, p. 4; Le Verger II, at Exhibit CWS-3 (Second), p. 50 (para. 157). ↩

³¹⁷ MELCC Report, at Exhibit C-0269-FRA, p. 70 (s. 3.5.9.9). ↩

³¹⁸ MELCC Report, at Exhibit C-0269-FRA, p. 11. ↩

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• decided to ignore this positive impact and declined to make a positive recommendation in this regard.

228 The MELCC's flawed approach to the evaluation of the costs and benefits of the GNLQ Project, in turn, led the Québec Government to wrongly include, as part of the grounds on which it decided to reject the GNLQ Project, the fact that “une grand part d'incertitude subsiste concernant [...] le bilan des avantages et coûts du projet”.³¹⁹

2.5.2 The irregular and one-sided nature of the BAPE hearings and BAPE Report between September 2020 and March 2021

229 As explained in the Memorial, the BAPE hearings concerning the GNLQ Project that took place in September 2020, became a forum for the biased and unproven opinions of Mr Clément Chion, a UQO researcher, and Mr Robert Michaud, President of the Groupe de recherche et d'éducation sur les mammifères marins (“GREMM”), who were then advocating a complete moratorium on navigation on the Saguenay River.³²⁰ Furthermore, the BAPE Report consisted of a series of unsubstantiated and speculative allegations, and failed to include an overall conclusion either in favour of or against the GNLQ Project.³²¹

230 As explained below, contrary to the Respondent's arguments in the Counter-Memorial,³²² the BAPE hearings and BAPE Report were procedurally and substantively irregular.

231 First, the Respondent attempts to hide these irregularities, by arguing that Mr Chion and Mr Michaud's participation in the BAPE hearing as “personnes-ressources” (i.e., a person competent on the topic addressed at

³¹⁹ Decree 1071-2021 concerning the refusal to issue an authorisation for the GNLQ project to build a natural gas liquefaction complex on the territory of the city of Saguenay dated 21 July 2021, at Exhibit C-0274-FRA. ↩

³²⁰ Memorial, p. 78 et seq. (paras. 225-234). ↩

³²¹ Memorial, p. 81 et seq. (paras. 235-243). ↩

³²² Counter-Memorial, p. 48 et seq. (paras. 127-131). ↩

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the relevant hearing) of the MFFP was normal practice.³²³ This contention is misleading.

232 The circumstances of Mr Michaud's and Mr Chion's participation were ostensibly irregular. The MFFP had pushed for their participation despite the BAPE refusing on two occasions that they should appear.³²⁴ It had managed to ensure that Mr Chion would be invited as an expert of the MFFP,³²⁵ which he was not,³²⁶ and to have Mr Michaud present in the room.³²⁷ The BAPE then erroneously presented and referred to Mr Michaud as a representative of the MFFP, not an external “personne-ressource".³²⁸

³²³ Counter-Memorial, p. 48 (para. 127). See also Witness Statement of René Beaudet dated 12 July 2024, at Exhibit RWS-2, p. 16 et seq. (para. 39). ↩

³²⁴ Email from I. Gauthier (MFFP) to C. Chion and R. Michaud dated 15 September 2020, at Exhibit C-0495-FRA, p. 1 ("Comme discuté au cours des dernières semaines, nous avons proposé au BAPE de vous inviter aux audiences publiques qui auront lieu à Saguenay à partir du 21 septembre 2020. Malheureusement, nous avons reçu une réponse négative, et, à l'heure actuelle, le BAPE ne prévoit pas votre présence, que ce soit en personne ou en ligne."). Email from I. Gauthier (MFFP) to C. Chion and R. Michaud dated 16 September 2020, at Exhibit C-0496-FRA, p. 1 (“Le BAPE maintient sa décision de ne pas vous convoquer en tant que personnes-ressources lors des audiences publiques."). ↩

³²⁵ Email from I. Gauthier (MFFP) to C. Chion and R. Michaud dated 16 September 2020, at Exhibit C-0496-FRA, p. 1 ("[I]l me sera possible d'inviter Clément à titre d'expert pour le MFFP. Clément, tu pourras donc, à la demande du commissaire, répondre aux questions qui nous seront posées concernant le programme de recherche"). ↩

³²⁶ He was self-admittedly participating for the purpose of presenting the results and actions of its research programme. See Email correspondence between I. Gauthier (MFFP) and C. Chion dated 15 September 2020, at Exhibit C-0497-FRA (“Merci de poursuivre les efforts pour que nos résultats et notre démarche puissent être présentés lors des audiences publiques."). ↩

³²⁷ Email from I. Gauthier (MFFP) to C. Chion and R. Michaud dated 16 September 2020, at Exhibit C-0496-FRA, p. 1 (“Robert, comme nous n'avons pas de lien contractuel avec le GREMM et que les places seront limitées, je ne pourrai pas t'inviter officiellement à titre de personne-ressource/expert pour le MFFP. Cependant, il te sera toujours possible d'être présent dans la salle, au même titre que tous les autres intervenants et groupes ou citoyens"). See also Email correspondence between R. Michaud and I. Gauthier (MFFP) from 16 September 2020 to 21 September 2020, at Exhibit C-0498-FRA, p. 1; Email correspondence between G. Grenier (BAPE) and I. Gauthier (MFFP) from 21 September 2020 to 22 September 2020, at Exhibit C-0499-FRA, p. 1. ↩

³²⁸ See, e.g., Email from V. de la Cheneliére (MFFP) to A. Lévesque (BSMA - Faune) dated 24 September 2020, at Exhibit C-0500-FRA, p. 1 ("Alors que Clément Chion était correctement identifié comme étant associé à l'UQO au cours de ses interventions, la vignette d'identification ↩

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These irregularities, compounded by the airtime granted to Mr Chion and Mr Michaud during the hearings, which the BAPE itself acknowledged was excessive,³²⁹ created the impression that the Québec Government shared their biased views regarding the Project. As Mr Le Verger, who was present at the BAPE hearing, explains:

“En dépêchant des militants contre le Projet et en les présentant comme des experts de son ministère, le MFFP a donc assumé de prendre position contre le Projet, alors que son rôle était d'apporter une information scientifique et objective à la population.

Au-delà de semer le doute concernant le projet dans l'esprit de la population, le MFFP lui a transmis le sentiment que le gouvernement du Québec partageait l'opinion de MM. Chion et Michaud.”³³⁰

234 Second, there are reasons to doubt the BAPE's impartiality in the case of the GNLQ Project.

235 The BAPE Report indeed included considerations that went beyond the proper scope of the EA. In relation to GHG emissions, for instance, the BAPE Report speculated as to how the LNG exported by GNLQ would be used.³³¹ The documents produced by the Respondent in document production show that the MELCC itself noted that the resulting

à l'écran indiquait 'Ministère des Forêts, de la Faune et des Parcs' lorsque Robert Michaud s'est exprimé. il s'agit d'une erreur de l'équipe de logistique du BAPE.); BAPE, Hearing Transcript (volume 8) dated 25 September 2020, at Exhibit C-0260-FRA, p. 10 ("Peut-être laisser la parole maintenant à monsieur Michaud pour le ministère de la Forêt, Faune et Parcs?") and p. 26 ("Merci de ces précisions. Peut-être, pour Faune et Parcs, monsieur Michaud aurait-il un complément d'information à fournir?").

³²⁹ See Email correspondence between I. Gauthier (MFFP) and G. Grenier (BAPE) et al. from 21 September 2020 to 24 September 2020, at Exhibit C-0501-FRA, p. 3 (Where, after the third day of hearings, the BAPE writes to the MFFP: “Pourriez juste simplement aviser M. Michaud d'être plus bref dans ses interventions étant donné la durée limitée de cette séance."). See also Memorial, p. 78 et seq. (paras. 225 and 230). ↩

³³⁰ Le Verger II, at Exhibit CWS-3 (Second), p. 30 (para. 89). ↩

³³¹ BAPE Report, at Exhibit C-0250-ENG-FRA, p. 312-313. ↩

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recommendations from the BAPE on this point, and a number of others, were outside the scope of the EA.³³²

236 The BAPE's approach in its analysis of the GNLQ Project stands in stark contrast with the conclusions of another BAPE commission, presided by the same Mr Denis Bergeron who presided over the GNLQ BAPE hearings, in the context of the airport fuel supply terminal project in East Montreal, about two years before the GNLQ BAPE hearings.³³³ In that case, the BAPE commission squarely dismissed the issue of GHG emissions as being outside the BAPE's mandate in the following terms:

“La commission d'enquête s'est également attardée à la question des gaz à effet de serre (GES) qui a été soulevée par certains participants à l'audience publique. [...] La commission considère toutefois que l'analyse de cet enjeu dépasse largement la portée de son mandat.”³³⁴

237 There was no reason for the BAPE to take a different approach with the GNLQ Project.

2.5.3 The Québec Government's irregular interference in the EA process with the promulgation of new and unprecedented requirements in March 2021

238 The Claimant explained in the Memorial that, on 24 March 2021, after the completion of the BAPE Report, the Québec Minister of Environment, Mr Benoit Charette, held a press conference during which he unexpectedly

³³² [Redacted] at Exhibit TLV-0111-FRA, p. 7 et seq. (Nos. 13, 14, 16, 17, 18, 22, 24); [Redacted] at Exhibit C-0494-FRA. See also [Redacted] at Exhibit TLV-0111-FRA, p. 3 et seq. (Nos. 7, 8, 13, 14, 16, 17, 18, 22, 24, 36, 48, 49). ↩

³³³ See BAPE Commission Report 343 for the airport fuel supply terminal project in East Montreal dated May 2018, at Exhibit CD-0076-FRA, p. vii. ↩

³³⁴ BAPE Commission Report 343 for the airport fuel supply terminal project in East Montreal dated May 2018, at Exhibit CD-0076-FRA, p. xi. ↩

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set three “core criteria" that GNLQ was required to meet for the Project to be approved.³³⁵ GNLQ was now required to demonstrate that the Project:

• would make a positive net contribution to reducing global, i.e., worldwide, GHG emissions;
• would promote (“favoriser”) the energy transition; and
• had achieved “social acceptability”.³³⁶

239 As demonstrated in the Memorial, and in Me Duchaine's first report:

• the first two requirements had never been mentioned by the MELCC, let alone presented as “core criteria", whether in the MELCC Directive or during the several years of the EA process conducted by the MELCC,³³⁷ had never been applied by the MELCC in any other project assessed under Québec law and have never been applied since;³³⁸
• the third criterion had, and has, never been construed under Québec law as a goal to be achieved, but rather as a process that proponents must go through to ensure the proper consultation of local communities, such that requiring a demonstration of the social acceptability of a project was and remains unprecedented.³³⁹

240 In its Counter-Memorial, the Respondent attempts to downplay Minister Charette's interference with the EA process and the novelty of the three “core criteria" by arguing (i) that these requirements existed at the outset of the process,³⁴⁰ (ii) they had been emphasised in the MELCC's questions throughout the process,³⁴¹ and (iii) that, during his March 2021

³³⁵ Memorial, p. 83 et seq. (para. 244); Point de presse de M. Benoit Charette, ministre de l'Environnement et de la Lutte contre les changements climatiques, 24 March 2021, at Exhibit C-0031-ENG-FRA. ↩

³³⁶ Point de presse de M. Benoit Charette, ministre de l'Environnement et de la Lutte contre les changements climatiques, 24 March 2021, at Exhibit C-0031-ENG-FRA; Memorial, p. 83 et seq. (para. 244). ↩

³³⁷ Memorial, p. 84 (paras. 245-247); Duchaine I, at Exhibit CER-1, p. 24. ↩

³³⁸ Memorial, p. 84 (para. 246); Duchaine I, at Exhibit CER-1, p. 90, 92. ↩

³³⁹ Memorial, p. 84 et seq. (para. 248); Duchaine I, at Exhibit CER-1, p. 122. ↩

³⁴⁰ Counter-Memorial, p. 180 et seq. (paras. 486-489). ↩

³⁴¹ Counter-Memorial, p. 51 et seq. (para. 136). ↩

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press conference, Mr Charette merely reiterated their importance,³⁴² which was normal practice.³⁴³ The Respondent further argues that, even if these criteria were new, GNLQ was granted sufficient time to address them after March 2021.³⁴⁴

241 The Respondent's arguments ignore the abnormality of Mr Charette's political intervention in the EA process (Section 2.5.3.1). They are in any event wrong: as imposed, all three core criteria were new (Section 2.5.3.2) and had been earlier disregarded by the MELCC (Section 2.5.3.3). Furthermore, GNLQ was provided insufficient time and guidance to address them in a meaningful way (Section 2.5.3.4).

2.5.3.1 The Québec Government's interference with the EA process was irregular and extraordinary

242 In its Counter-Memorial, the Respondent fails to explain why the Minister of Environment of Québec suddenly held a press conference to proclaim three new criteria that GNLQ was required to meet for the GNLQ Project to be approved when the MELCC's EA was still ongoing and had been ongoing for several years.

243 The Respondent's only explanation is that “il est tout à fait normal et fréquent dans le cadre de l'analyse environnementale qu'un initiateur se voit [sic] poser des questions additionnelles pour évaluer si son projet est acceptable ou non”.³⁴⁵

244 That position, however, is contradicted by the very witness on whose testimony the Respondent relies, Mr Duquette, who admits in his witness statement that “il n'est pas nécessairement usuel que le ministre de l'Environnement énonce des critères lors du dévoilement d'un rapport du BAPE.”³⁴⁶ Me Duchaine puts it more bluntly: in her expert opinion, Minister Charette's declaration and the imposition of new criteria so late

³⁴² Counter-Memorial, p. 50 et seq. (paras. 133-135), p. 182 (para. 490). ↩

³⁴³ Counter-Memorial, p. 184 (para. 493). ↩

³⁴⁴ Counter-Memorial, p. 184 (para. 494). ↩

³⁴⁵ Counter-Memorial, p. 184 (para. 493). ↩

³⁴⁶ Duquette, at Exhibit RWS-5, p. 24 (para. 52) (emphasis added). ↩

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in the assessment process was “hautement inhabituelle et n'est aucunement conforme à la procédure de l'ÉEIE de la LQE”.³⁴⁷ Me Duchaine confirmed this opinion in her second report in the light of her review of a number of documents produced by the Respondent in document production.³⁴⁸

245 Tellingly, the Respondent's own expert on Québec environmental law, Me Yergeau, does not comment on the propriety of Minister Charette's declaration. He merely indicates that the Minister of Environment can ask the proponent further questions or request information as he/she sees fit.³⁴⁹

246 Me Duchaine explains in her second report that Me Yergeau's position in this respect is misconceived.³⁵⁰ With respect to the criteria pertaining to the energy transition and the reduction of worldwide GHG emissions, she confirms that additional questions could not amend the scope of the MELCC Directive and thus of the EA, including the basis for the decision of the Québec Government.³⁵¹ Furthermore, as she points out, if the Minister could amend the MELCC Directive whenever he/she wishes, it would render the MELCC Directive meaningless; the assessment would not be subject to any defined scope or framework, only the Minister's discretion.³⁵² She adds that Me Yergeau's position is also inconsistent with the fact that the EQA provided for a specific procedure to amend the MELCC Directive.³⁵³

247 What is more, the documents produced by the Respondent in document production confirm that Minister Charette's press conference, and the core criteria he proclaimed, were the result of a political initiative by the Québec Government to derail what would otherwise have been a positive

³⁴⁷ Duchaine I, at Exhibit CER-1, p. 82. ↩

³⁴⁸ Duchaine II, at Exhibit CER-1 (Second), p. 109 et seq. (para. 308). ↩

³⁴⁹ Yergeau, at Exhibit RER-2, p. 32 et seq. (paras. 95-96). ↩

³⁵⁰ Duchaine II, at Exhibit CER-1 (Second), p. 105 et seq. (paras. 289-299). ↩

³⁵¹ Duchaine II, at Exhibit CER-1 (Second), p. 105 (para. 292) and p. 108 et seq. (paras. 304-309). ↩

³⁵² Duchaine II, at Exhibit CER-1 (Second), p. 75 et seq. (para. 224) and p. 105 (paras. 291-292). ↩

³⁵³ Duchaine II, at Exhibit CER-1 (Second), p. 106 (para. 295). ↩

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recommendation by the MELCC, which should have led to an approval of the GNLQ Project.

248 Indeed, approximately 10 days before Minister Charette announced the three “core criteria”, his staff were of the view that, based on the procedure to date and subject to further questions following the BAPE Report, the GNLQ Project would be authorised. In an internal MELCC email between Minister Charette's chief of staff, Mr Delaney, and his deputy, Ms Géhin, dated 10 March 2021, Ms Géhin stated:

[Redacted]

[Redacted]

[Redacted]

[Redacted]

[Redacted]³⁵⁴

249 On the same day, in another MELCC internal email of 10 March 2021 discussing the BAPE Report, [Redacted]

[Redacted]

[Redacted]³⁵⁵

³⁵⁴ Internal MELCC email correspondence between E. Géhin and H. Delaney from 10 March 2021 to 19 March 2021, at Exhibit C-0502-FRA. In a subsequent email, [Redacted] (Internal MELCC email correspondence between E. Géhin and H. Delaney et al. dated 23 March 2021, at Exhibit C-0503-FRA [Redacted] (emphasis added)). ↩

³⁵⁵ Internal MELCC email correspondence between S. Berthiaume, B. Charette and E. Géhin dated 10 March 2021, at Exhibit C-0504-FRA, p. 1 [Redacted] ↩

[Redacted].

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It is not clear when this meeting occurred. However, the list of documents that the Respondent has refused to produce in this regard,³⁵⁶ in violation of the Tribunal's order, is telling:

• Every day between 10 and 17 March 2021, Minister Charette sent the Québec Cabinet a [Redacted]
  
  [Redacted]³⁵⁷
• This draft note prompted numerous exchanges both within the MELCC itself and among Ministries of the Québec Government, including between the MELCC on the one hand and the MEI and the MERN on the other hand.³⁵⁸
• [Redacted]
  
  [Redacted]
  
  [Redacted]³⁵⁹

³⁵⁶ Canada has refused to produce a substantial number of documents, despite the Tribunal's order to do so, in response to the Claimant's requests for (i) documents produced by the MELCC regarding the GNLQ Project from mid-February 2021 to the end of April 2021 (Request 4); and (ii) communications regarding the GNLQ Project between Minister Charette and the Prime Minister and/or members of the Québec Government from 1 March to 26 April 2021 (Request 5). PO4, Annex A, p. 21 et seq. (Requests 4 and 5); List of documents responsive to Request No. 4 that the Respondent has refused to produce, at Exhibit C-0505-ENG-FRA; List of documents responsive to Request No. 5 that the Respondent has refused to produce, at Exhibit C-0506-ENG-FRA. See also, more broadly List of Documents that the Respondent has refused to produce in response to the Claimant's requests in breach of Procedural Orders Nos. 4, 9, and 10, at Exhibit C-0507-ENG. ↩

³⁵⁷ See List of documents responsive to Request No. 4 that the Respondent has refused to produce, at Exhibit C-0505-ENG-FRA (PRIV00393, PRIV00010, PRIV00004, PRIV001164, PRIV001114, PRIV00376, PRIV000788, PRIV000371); see also List of documents responsive to Request No. 5 that the Respondent has refused to produce, at Exhibit C-0506-ENG-FRA (emphasis added). ↩

³⁵⁸ See, e.g., List of documents responsive to Request No. 4 that the Respondent has refused to produce, at Exhibit C-0505-ENG-FRA (PRIV001286, PRIV001325, PRIV000376); List of documents responsive to Request No. 5 that the Respondent has refused to produce, at Exhibit C-0506-ENG-FRA. ↩

³⁵⁹ List of documents responsive to Request No. 4 that the Respondent has refused to produce, at Exhibit C-0505-ENG-FRA; List of documents responsive to Request No. 5 that the Respondent has refused to produce, at Exhibit C-0506-ENG-FRA (PRIV000587). ↩

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251 The documents at issue above are part of a substantial number of documents that the Respondent has refused to produce, despite the Tribunal's order to do so, in response to the Claimant's requests for:

• documents produced by the MELCC regarding the GNLQ Project from mid-February 2021 to the end of April 2021;³⁶⁰ and
• communications regarding the GNLQ Project between Minister Charette and the Prime Minister and/or members of the Québec Government from 1 March to 26 April 2021.³⁶¹

252 On the other hand, the documents that the Respondent did produce reveal that [Redacted]

[Redacted]³⁶²

253 Furthermore, during a meeting held with the MELCC in November 2021, after the rejection of the GNLQ Project, the MEI asked where Minister Charette's three "core criteria" had come from. The MELCC representative confirmed that they had been added by the Québec Government for political reasons, as a result of its change of position regarding the GNLQ Project, and not therefore by the MELCC as part of the EA process:

“Le MEI se demandait d'où venaient les 3 critères énoncés par notre ministre pour GNL. Jean-François [Gibeault, Deputy Minister of the Ministry of Environment] a mentionné qu'il pouvait y avoir une distinction entre le ministère et le politique, et que cela

³⁶⁰ See PO4, Annex A, p. 21 et seq. (Request 4); see also List of documents responsive to Request No. 4 that the Respondent has refused to produce, at Exhibit C-0505-ENG-FRA. ↩

³⁶¹ See PO4, Annex A, p. 25 et seq. (Request 5); List of documents responsive to Request No. 5 that the Respondent has refused to produce, at Exhibit C-0506-ENG-FRA. ↩

³⁶² Email correspondence between J. Martin (Agency) and M. Duquette (MELCC) from 27 April to 25 May 2021, at Exhibit C-0492-FRA [Redacted] (emphasis added). See also Email correspondence from G. Richard (MELCC) to C. Benoit dated 23 March 2021, at Exhibit C-0508-FRA, [Redacted] at Exhibit C-0509-FRA). ↩

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a été un peu le cas pour GNL. Nous avons notamment parlé du changement de position par rapport au projet, même si l'initiateur a bien fait ses devoirs.”³⁶³

254 In this context, were the documents listed above supportive of the Respondent's narrative, it would have produced them voluntarily, and certainly upon the Tribunal's order, regardless of any considerations of privilege as such considerations were specifically dismissed by the Tribunal.

255 The Tribunal should therefore draw the following adverse inferences³⁶⁴ from the Respondent's refusal to produce those documents:

1. The Minister of Environment, Mr Charette, made, or was asked to make, a recommendation to the Québec Cabinet, albeit in the form of draft informative notes, regarding the EA of the GNLQ Project, whereas it was improper for him to do so prior to (i) the analysis of the BAPE Report (which the MELCC received only on 10 March 2021),³⁶⁵ and (ii) a review of the MELCC Report (which was only issued on 30 June 2021).

³⁶³ Internal MELCC email correspondence between M. Gagnon, N. Gleeton and J. Bissonnette from 28 November 2021 to 1 December 2021, at Exhibit C-0510-FRA (emphasis added). ↩

³⁶⁴ The Tribunal's power to draw adverse inferences is clearly set out in paragraph 15.12 of Procedural Order No. 1 dated 23 August 2023 ("Should a party fail to produce documents as ordered by the Tribunal, the Tribunal may draw the inferences it deems appropriate in relation to the documents not produced, taking into account all relevant circumstances, after seeking and taking into consideration explanations provided by the parties."). It is also in line with the approach adopted by investment arbitration tribunals, including in NAFTA cases: See Marvin Roy Feldman Karpa v. United Mexican States, ICSID Case No. ARB(AF)/99/1, Award, 16 December 2002, at Exhibit CL-027-ENG, p. 73 et seq. (para. 178) (in which the majority of the tribunal observed that the respondent had failed to produce evidence directly relevant to the issue of discrimination and had failed to explain why the evidence was never introduced. The majority asked: "Why would any rational party have taken this approach [...] if it had information in its possession that would have shown that the Mexican owned cigarette exporters were being treated in the same manner as the Claimant." It concluded that "it is entirely reasonable for the majority of this Tribunal to make an inference based on the Respondent's failure to present evidence on the discrimination issue."). See also OPIC Karimum Corporation v. The Bolivarian Republic of Venezuela, ICSID Case No. ARB/10/14, Award, 28 May 2013, at Exhibit CL-281-ENG, p. 32 (para. 124), p. 40 (paras. 144-145). ↩

³⁶⁵ Beaudet, at Exhibit RWS-2, p. 18 (para. 42). ↩

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2. The informative notes sent by Minister Charette between 10 and 17 March 2021 to the Québec Cabinet contain statements that demonstrate the unlawful motivations of the Minister for recommending that the GNLQ Project be rejected, namely matters outside Québec's jurisdiction or the MELCC Directive.
3. Between 10 and 17 March 2021, the Québec Government, including Premier Legault through Mr Koskinen, was already discussing the GNLQ Project and whether to approve it, based on Minister Charette's draft informative notes, even though the EA was still ongoing (and would continue for another three months) and the MELCC had not issued its report.
4. These discussions led to the conclusions that Minister Charette should raise the new “core criteria” that he raised during his press conference of 24 March 2021 regarding the publication of the BAPE Report.
5. By 24 March 2021, Minister Charette and the Québec Government had bypassed the EA process and pre-empted its outcome and were agreed on how to pave the way to refusing the environmental authorisation for the GNLQ Project, as the Government eventually did.

256 To conclude, the contemporaneous evidence, direct or inferred, shows that the addition of the three “core criteria" to the ongoing EA of the Project was the result of irregular political interference on the part of the Québec Government, designed to alter the course of the EA and set the ground for a rejection of the GNLQ Project.

2.5.3.2 The "core criteria", as imposed by the Minister of Environment on 24 March 2021, were new

257 The Respondent's contention in the Counter-Memorial that all three of the "core criteria" featured in the MELCC Directive, or were emphasised by the MELCC during the EA process, is unsubstantiated and wrong.³⁶⁶

258 That there were passing references to certain issues somewhat related to those "core criteria”, as pointed out by the Respondent,³⁶⁷ cannot and does

³⁶⁶ Counter-Memorial, p. 180 et seq. (para. 486). ↩

³⁶⁷ Counter-Memorial, p. 180 et seq. (para. 486). ↩

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not mean that GNLQ was on notice that these issues would become mandatory requirements in the last few months of the EA process. In this respect, it is important to recall the exact words used by Mr Charette during his press conference to describe the three “core criteria":

“En fait, on a posé trois conditions très claires qui sont maintenues encore à ce jour, acceptabilité sociale, favoriser la transition énergétique et, ultimement, contribuer aux diminutions mondiales des gaz à effet de serre.”³⁶⁸

259 The following thorough analysis of the MELCC Directive and GNLQ's exchanges with the MELCC shows that these “core criteria" were not clearly stated, at the outset or later in the process, but were uttered for the first time as such by Minister Charette on 24 March 2021.

(i) “acceptabilité sociale”

260 It is common ground between the Parties that the term “acceptabilité sociale” was mentioned in the MELCC Directive.³⁶⁹ However, the MELCC Directive does not present social acceptability as an outcome to be achieved for the Project to be approved. On the contrary, GNLQ was encouraged to ensure that local communities would be adequately consulted and provided with a forum to express their point of view.

261 Indeed, under the heading “[i]ncitation à consulter le public et les communautés autochtones", the MELCC Directive stated:

“Le Ministère encourage l'initiateur de projet à mettre à profit la capacité des citoyens et des communautés à faire valoir leurs points de vue [...]. À cet effet, le Ministère recommande à l'initiateur de projet de mettre en place un processus de consultation publique. Dans la mesure où des communautés autochtones pourraient être affectées par un projet, le Ministère recommande la mise en place d'un processus distinct permettant à

³⁶⁸ Point de presse de M. Benoit Charette, ministre de l'Environnement et de la Lutte contre les changements climatiques, 24 March 2021, at Exhibit C-0031-ENG-FRA, p. 2 (emphasis added). ↩

³⁶⁹ Counter-Memorial, p. 181 (para. 487). ↩

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ces dernières de faire valoir les préoccupations particulières qu'elles pourraient avoir en lien avec le projet.”³⁷⁰

262 The approach envisaged in the MELCC Directive is confirmed by Me Duchaine's analysis of the MELCC Directive in her first report.³⁷¹

263 The Respondent is thus wrong to suggest that achieving social acceptability was an objective set by the MELCC Directive.

264 Furthermore, until the new “core criteria” were raised, social acceptability did not arise as an issue from the MELCC's questions to GNLQ during the EA process. As Me Duchaine noted in her first report, the MELCC did not ask GNLQ a single written question about social acceptability during the six-year period of the assessment.³⁷² It only did so once, on 26 April 2021, after and because of Minister Charette's press conference.³⁷³

(ii) “favoriser la transition énergétique”

265 According to the Respondent, the reference in the MELCC Directive to the goal of complying with the “objectifs du développement durable” was sufficient to indicate that the Project would have to “promote energy transition" ("favoriser la transition energétique").³⁷⁴ However, that tenuous reading of the MELCC Directive cannot be sustained.

266 First, the concept of sustainable development is extremely broad; it spans across the environment, politics and the economy.³⁷⁵ Although sustainable

³⁷⁰ MELCC Directive, at Exhibit C-0198-FRA, p. 3 (emphasis added). ↩

³⁷¹ Duchaine I, at Exhibit CER-1, p. 121. ↩

³⁷² Duchaine I, at Exhibit CER-1, p. 122. ↩

³⁷³ MELCC, Addendum to the request for undertakings and additional information of 3 March 2021 (26 April 2021), at Exhibit C-0268-FRA, p. 2. ↩

³⁷⁴ Counter-Memorial, p. 181 (para. 488). ↩

³⁷⁵ For instance Québec's Loi sur le développement durable defines “développement durable" as "un développement qui répond aux besoins du présent sans compromettre la capacité des générations futures à répondre aux leurs. Le développement durable s'appuie sur une vision à long terme qui prend en compte le caractère indissociable des dimensions environnementale, sociale et économique des activités de développement." See Loi sur le Développement Durable, chapitre D-8.1.1, at Exhibit MY-0041-FRA, p. 2 (Art. 2). ↩

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development may be said to encompass the energy transition as part of its goals or as a means to an end, the two concepts are not synonymous.

267 Conversely, the promotion of the energy transition, in the context of a natural gas transportation and liquefaction project has a very concrete meaning. It means contributing to the transition in energy use, from the consumption of fuels generating high GHG emissions to energy sources resulting in lower or net zero GHG emissions.³⁷⁶ This goal does not appear in the MELCC Directive, let alone as a condition for the approval of the GNLQ Project.

268 The Respondent's reliance on questions raised in 2019 by the MELCC relating to GHG emissions and climate change at a global level is disingenuous.³⁷⁷ None of these questions in any way suggested that the Project would be assessed according to its contribution to the global energy transition through the reduction of GHG emissions. The fact that the MELCC only asked two series of questions about this topic in the middle of a process that spanned over several years underscores how marginal the issue was for its analysis.

269 Ironically, the Respondent's main argument on this point is that GNLQ itself, in its EIS, presented the energy transition as a justification for the Project.³⁷⁸ In other words, the Respondent suggests that Minister Charette set the promotion of the energy transition as a requirement for the acceptability of the Project, not on the basis of the EQA, the MELCC Directive, or the MELCC's questions to GNLQ, but on GNLQ's own aspirations. This too is disingenuous.

270 As Me Duchaine confirms in her second report:

“[L]e Québec ne peut prendre prétexte du fait que GNL Québec fait état de certains enjeux dans son Étude d'impact pour s'arroger une compétence qu'il n'a pas ou pour tenir compte d'enjeux que le

³⁷⁶ Le Verger II, at Exhibit CWS-3 (Second), p. 5 et seq. (paras. 6-7). ↩

³⁷⁷ Counter-Memorial, p. 44 et seq. (para. 119). ↩

³⁷⁸ Counter-Memorial, p. 181 (para. 488). ↩

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Ministre n'a pas jugé opportun de lister dans sa Directive dans sa prise de décision.”³⁷⁹

(iii) “contribuer aux diminutions mondiales des gaz à effet de serre"

271 The Respondent argues that the requirement for GNLQ to contribute to the global (worldwide) reduction of GHG emissions was subsumed in the MELCC's indication in the Directive that GNLQ should “porter attention [aux] effets du projet sur les grands enjeux de nature atmosphérique [soit les] gaz à effet de serre [et les] changements climatiques".³⁸⁰

272 However, that sentence was extracted from a list of potential impacts of the GNLQ Project set out in the MELCC Directive.³⁸¹ The Respondent cannot seriously argue that it sufficed to warn GNLQ that it would be required, not only to mitigate the potential impact of the GNLQ Project itself on GHG emissions, but to meet the extraordinary requirement of reducing such GHG emissions on a worldwide basis - and not only at Québec's level.

273 The Respondent's argument is also inconsistent with its own submission. Indeed, in another part of its Counter-Memorial, the Respondent argues, that (i) the MELCC never requested that GNLQ establish that the GNLQ Project would result in a decrease of global GHG emissions downstream of the Project, notably because (ii) the MELCC Directive did not include such a requirement:

"Elle [the Claimant] s'appuie sur la prétention selon laquelle le MELCC n'aurait pas considéré les émissions en aval des ventes des produits de Métaux Blackrock, alors qu'il aurait exigé de GNL Québec qu'elle démontre que la consommation de gaz naturel liquéfié issu de son projet résultera en une diminution nette des émissions de GES. Le MELCC n'a pas exigé une telle démonstration de la part de GNL Québec quant aux émissions en

³⁷⁹ Duchaine II, at Exhibit CER-1 (Second), p. 105. (para. 288). ↩

³⁸⁰ Counter-Memorial, p. 182 (para. 489) (emphasis added). ↩

³⁸¹ MELCC Directive, at Exhibit C-0198-FRA, p. 19 et seq. ↩

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aval, pas plus qu'il ne l'a exigé de la part de Métaux Blackrock. Nulle part dans la Directive de décembre 2015 pour le projet Énergie Saguenay le MELCC ne mentionne une exigence de fournir cette démonstration.”³⁸²

274 To conclude, the “core criteria", as they were presented by Minister Charette on 24 March 2021 were entirely new to GNLQ, as they were not set out in the MELCC Directive and were never presented as requirements by the MELCC during the EA.

2.5.3.3 The MELCC had disregarded the “core criteria" but was compelled to take them into account after Minister Charette's press conference

275 In the Counter-Memorial, the Respondent relies on the MELCC's 26 April 2021 request for additional information to GNLQ, which included questions corresponding to Minister Charette's “core criteria", to contend that these criteria originated from the MELCC all along.³⁸³ This is untrue.

276 The documents produced by the Respondent in document production revealed that the MELCC team in charge of the assessment had in fact already considered but disregarded Minister Charette's “core criteria" before and even immediately after his press conference, until they were compelled to take them into account by their hierarchy.

277 Before Minister Charette's press conference, the MELCC had rejected the contribution of the GNLQ Project to the energy transition and the reduction of global GHG emissions as requirements that GNLQ had to meet. This transpires from the MELCC's work product prepared before Minister Charette's press conference. Specifically, the MELCC had been required to opine on the BAPE's statement that there was no guarantee or any means to ensure that the LNG produced by GNLQ would effectively replace, and thus displace, more polluting fuels in the planned export markets.³⁸⁴ The

³⁸² Counter-Memorial, p. 122 et seq. (para. 334) (emphasis added). ↩

³⁸³ Counter-Memorial, p. 51 et seq. (paras. 135-136). ↩

³⁸⁴ [Redacted] at Exhibit TLV-0111-FRA, p. 20 (of the PDF) (emphasis added). ↩

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MELCC team not only found this statement to be outside the scope of the EA, but also challenged the validity of the BAPE's conclusion as follows:

[Redacted]

[Redacted]

[Redacted]

[Redacted]

[Redacted]

[Redacted]³⁸⁵

278 [Redacted] the MELCC reiterated that most of these “avis” fell outside the scope of the EA:

[Redacted]

[Redacted]

[Redacted]³⁸⁶

279 In that analysis, the MELCC made two further relevant observations.

280 [Redacted]³⁸⁷ The SPEDE is a GHG emissions cap-and-trade system (i.e., a carbon market) established by the Québec Government and

³⁸⁵ [Redacted] at Exhibit TLV-0111-FRA, p. 20 (of the PDF) (emphasis added). ↩

³⁸⁶ [Redacted] at Exhibit C-0494-FRA, p. 6. ↩

³⁸⁷ [Redacted] at Exhibit C-0494-FRA, p. 6 [Redacted] ↩

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the State of California, by which high GHG emitters can acquire emissions rights from less intensive emitters to cover their emissions beyond a certain regulatory threshold.³⁸⁸ The MELCC considered that this mechanism would be sufficient to ensure that the GHG emissions generated by the GNLQ Project would not hinder Québec's reduction objective.³⁸⁹

281 Second, [Redacted]³⁹⁰ In other words, the MELCC was satisfied that the impact of the Project on Québec's GHG emissions reduction was limited and would in any event be mitigated.

282 Other documents produced by the Respondent in document production reveal that, ultimately, the MELCC team in charge of the GNLQ Project EA was instructed to change course by Minister Charette's staff who mandated them to include the “core criteria” in their questions to GNLQ and in their subsequent analysis. More specifically, the documents produced by the Respondent show that:

• the MELCC team conducting the assessment had no intention of asking any questions relating to the issues raised by Minister Charette during his press conference;³⁹¹
• the MELCC acknowledged that these issues did not arise from the assessment team (“Je sais que ce point ne vient pas de nous”);³⁹²

³⁸⁸ UQAC, Final Report "Identification de moyens crédibles pour un grand émetteur final canadien de s'affirmer carboneutre au Québec" dated 4 September 2019, at Exhibit C-0213-FRA, p. 65. ↩

³⁸⁹ [Redacted] at Exhibit C-0494-FRA, p. 6. ↩

³⁹⁰ [Redacted] at Exhibit C-0494-FRA, p. 6 et seq. ↩

³⁹¹ Email correspondence between M. Duquette (MELCC) and M. Gagnon (DGÉES) et al. from 31 March 2021 to 15 April 2021, at Exhibit C-0511-FRA, p. 2 et seq., summarising the topics that would be raised as part of the MELCC's subsequent set of questions and explicitly confirming that these would not include Minister Charette's "core criteria" ("Rien en ce qui concerne les GES"). ↩

³⁹² Email correspondence between M. Duquette (MELCC) and M. Gagnon (DGÉES) et al. from 31 March 2021 to 15 April 2021, at Exhibit C-0511-FRA, p. 2. ↩

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• the MELCC nonetheless required the assessment team to include questions regarding these issues;³⁹³ and
• the assessment team initially pushed back, arguing that these issues were either closed (social acceptability) or outside the scope of a provincial environmental analysis (energy transition and global GHG emissions).³⁹⁴

283 On the issue of global GHG emissions, the MELCC stated the following:

“Pour le point 1 [le projet permettra de diminuer de façon significative les émissions mondiales de GES], le MELCC est limité dans sa validation par la portée de l'évaluation environnementale, c'est-à-dire que l'autorisation ne vise que les émissions québécoises.”³⁹⁵

284 This opinion was shared by the federal Agency. Indeed, after the rejection of the Project by the Québec Government, the Agency summarised Minister Charette's press conference internally and noted that his "core criteria” “vont au-delà de la Loi sur la qualité de l'environnement”.³⁹⁶

285 The MELCC's reluctance to step outside the scope of the EA was short-lived. Ultimately, apparently in the face of political pressure, the MELCC issued additional questions on 26 April 2021, two of which included queries regarding the new “core criteria",³⁹⁷ to the satisfaction of Minister Charette's Chief of Staff, Hugo Delaney, who forwarded them to his minister stating the following:

³⁹³ Email correspondence between M. Duquette (MELCC) and M. Gagnon (DGÉES) et al. from 31 March 2021 to 15 April 2021, at Exhibit C-0511-FRA, p. 2. ↩

³⁹⁴ Email correspondence between M. Duquette (MELCC) and M. Gagnon (DGÉES) et al. from 31 March 2021 to 15 April 2021, at Exhibit C-0511-FRA, p. 1 et seq. ↩

³⁹⁵ Email correspondence between M. Duquette (MELCC) and M. Gagnon (DGÉES) et al. from 31 March 2021 to 15 April 2021, at Exhibit C-0511-FRA, p. 1 (emphasis added). ↩

³⁹⁶ Internal IAAC email correspondence between E. Landry and B. Dubreuil dated 21 July 2021, at Exhibit C-0512-FRA, p. 1. ↩

³⁹⁷ MELCC, Addendum to the request for undertakings and additional information of 3 March 2021 (26 April 2021), at Exhibit C-0268-FRA, p. 2 (Questions 52 and 53). ↩

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[Redacted]³⁹⁸

286 In sum, the Minister had successfully managed to force his own team to include criteria that they had rejected as outside the scope of their EA of the GNLQ Project.

287 As a result of this political interference, the contribution of the Project to the reduction of global GHG emissions formed a prominent part of the MELCC's reasons for concluding in its Report dated 30 June 2021 that the Project was not acceptable:

“L'analyse effectuée par le MELCC [...] ne permet pas de conclure à l'acceptabilité environnementale du projet, et ce, malgré le fait que GNL Québec inc. se soit engagé à remplir la plupart des engagements demandés par le MELCC et les autres ministères et que la PÉEIE ait permis d'obtenir certains gains environnementaux. En effet, le bilan des GES au niveau mondial, la transition énergétique, le bilan des avantages et coûts du projet et l'impact appréhendé sur la population de bélugas de l'ESL demeurent des enjeux pour lesquels une grande part d'incertitudes subsiste. De plus, l'équipe d'analyse arrive à la même conclusion que celle de la commission du BAPE sur le projet, à savoir qu'elle n'est pas en mesure de se prononcer sur l'acceptabilité sociale à l'égard de celui-ci.”³⁹⁹

288 The contrast between this conclusion and the MELCC's position immediately prior to Minister Charette's press conference reflects the Québec Government's tampering with the EA process in its final stage.

2.5.3.4 GNLQ was not afforded sufficient time to address Minister Charette's new "core criteria"

289 In the Counter-Memorial, the Respondent argues that, even assuming that the "core criteria” were new, GNLQ was provided with adequate notice

³⁹⁸ Internal MELCC correspondence between H. Delaney and M. Croteau et al. dated 26 April 2021, at Exhibit C-0513-FRA (emphasis added.) ↩

³⁹⁹ MELCC Report, at Exhibit C-0269-FRA, p. 75 (emphasis added). ↩

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and sufficient time to address them.⁴⁰⁰ The Respondent contends that GNLQ had four months to present its observations, between 24 March 2021, when Minister Charette articulated the three “core criteria", and 21 July 2021 when the Québec Government issued the Decree rejecting the Project.⁴⁰¹ Whilst the time period between these two events is not disputed, the simplistic conclusion that the Respondent seeks to draw from it is misguided.

290 First, it is not correct that GNLQ had four months to address the "core criteria". As explained in the Memorial, following Mr Charette's declaration, he and his staff were unable to provide any guidance as to how GNLQ's further submission on these three “core criteria" would be evaluated.⁴⁰² Mr Le Verger explains in his second witness statement that Mr Duquette confessed that he had no instructions or protocol to address the “core criteria”.⁴⁰³ GNLQ had to wait until 26 April 2021 to receive questions from the MELCC;⁴⁰⁴ this is not disputed.⁴⁰⁵

291 Despite this uncertainty, Minister Charette put significant pressure on GNLQ to provide its response as quickly as possible, falsely implying that this would ensure the prompt organisation of BAPE hearings for the Gazoduq Project.⁴⁰⁶

⁴⁰⁰ Counter-Memorial, p. 184 (para. 494). ↩

⁴⁰¹ Counter-Memorial, p. 184 (para. 494). ↩

⁴⁰² Although GNLQ sought guidance on how to respond to the "core criteria" shortly after Minister Charette's press conference, it took until 22 April 2021 to meet him only for him to state that he did not know how GNLQ was supposed to respond. J. Pronovost (TACT), Note – Summary of the meeting with the Minister of the Environment and Climate Change dated 22 April 2021, at Exhibit C-0267-FRA; Le Verger I, at Exhibit CWS-3, p. 48 et seq. (paras. 196-198)). See also Memorial, p. 85 et seq. (paras. 250-252). ↩

⁴⁰³ Le Verger II, at Exhibit CWS-3 (Second), p. 40 (para. 124). ↩

⁴⁰⁴ Le Verger II, at Exhibit CWS-3 (Second), p. 40 et seq. (para. 125). See also Memorial, p. 86 (para. 253-254). ↩

⁴⁰⁵ Counter-Memorial, p. 184 (para. 494). ↩

⁴⁰⁶ J. Pronovost (TACT), Note – Summary of the meeting with the Minister of the Environment and Climate Change dated 22 April 2021, at Exhibit C-0267-FRA (“Minister Charette pointed out that the BAPE's schedule for 2022 1s filling up quickly. In that regard, the Minister told GNL Qc to speed up its analysis so the BAPE can quickly move on to Gazoduq's, which could happen as soon as 2022."). ↩

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GNLQ thus submitted its response to the MELCC's questions of 26 April 2021 five weeks later, on 3 June 2021.⁴⁰⁷ The MELCC then issued its EA report - the MELCC Report on which the Government Decree is based - less than four weeks later, on 30 June 2021.⁴⁰⁸

293 Moreover, these five weeks have to be considered in the context of several years of EA process during which these questions could and should have been asked, if they reflected genuine concerns.

294 Second, the MELCC's questions of 26 April 2021 were purposely drafted to remain vague and open-ended, making it harder, if not plainly impossible, for GNLQ to address them in a meaningful way. This transpires from the documents produced by the Respondent in document production:

• A first version of the questions was ready on 16 April 2021, which provided GNLQ with objective guidance on how to meet Minister Charette's new requirements in relation to the two first criteria (GHG emissions and energy transition).⁴⁰⁹
• These questions were not put to GNLQ, as drafted. The MELCC team in charge of preparing them first shared them with Minister Charette on 16 April 2021 and met with him on 20 April 2021 to present them.⁴¹⁰
• On 22 April 2021, Minister Charette met with GNLQ and, rather curiously, indicated that the MELCC could not provide GNLQ with

⁴⁰⁷ GNLQ, Answers to questions and commitments requested by the MELCC dated 3 June 2021, at Exhibit C-0068-FRA. ↩

⁴⁰⁸ Counter-Memorial, p. 184 (para. 494). ↩

⁴⁰⁹ Email from C. Dufour (MELCC) to M. Gagnon (DGÉES) et al. (with attachment) dated 16 April 2021, at Exhibit C-0514-FRA. See also MELCC, Table of main issues for the GNLQ Project dated 16 April 2021, at Exhibit C-0515-FRA. ↩

⁴¹⁰ Email correspondence between M. Duquette (MELCC) and M. Gagnon (DGÉES) et al. (with attachment), at Exhibit C-0516-FRA; Email correspondence between N. Gleeton (MELCC), S. Chouinard, E. Géhin (MELCC) and J. Pronovost (TACT) from 31 March 2021 to 19 April 2021 dated 19 April 2021, at Exhibit C-0517-FRA. ↩

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guidance on how to address his “core criteria" because the MELCC allegedly lacked the required “knowledge to impose the framework”.⁴¹¹

• On 26 April 2021, a new, final version of the questions was put to GNLQ.⁴¹² These were vague as compared to the draft prepared by the MELCC on 16 April 2021, making it much more difficult for GNLQ to address them.

295 Specifically, the draft question relating to the reduction of global GHG emissions initially read as follows:

“Quelles preuves additionnelles l'initiateur est en mesure d'apporter pour confirmer son scénario de réduction de l'émission de GES au niveau mondial ?

Pour y arriver, l'initiateur devrait notamment présenter en détail les marchés visés, les clients potentiels, le volume de GNL potentiellement vendu pour chacun des clients et le type des sources d'énergie que le GNL substituerait.”⁴¹³

296 As for the draft question concerning the improvement of the energy transition, it read as follows:

“Est-ce que l'initiateur est en mesure de présenter des arguments afin de démontrer que les infrastructures du projet mise en place ne constitueraient pas un frein à la transition énergétique (ne verrouillera pas les choix énergétiques à court et à moyen termes)

⁴¹¹ J. Pronovost (TACT), Note – Summary of the meeting with the Minister of the Environment and Climate Change dated 22 April 2021, at Exhibit C-0267-FRA ("The minister gives GNLQ a carte blanche as the cabinet does not have the knowledge to impose the framework. He basically said that forcing us to follow a path would put the Govt in an uncomfortable situation, so he does not want to tell us what to do. Stephan asked if this could be under the form of politicians or experts around the world talking to them, so that we help them help us, particularly for the day when they issue the decree. He said that it has to be more than just verbal. There needs to be something on record with which the MELCC is comfortable to be put in the file. He said, whether it is a scientific study, a demonstration, a contract etc... he has no views on this, but there needs to be a written proof."). ↩

⁴¹² MELCC, Addendum to the request for undertakings and additional information of 3 March 2021 (26 April 2021), at Exhibit C-0268-FRA, p. 2 (Questions 52 and 53). ↩

⁴¹³ MELCC, Table of main issues for the GNLQ Project dated 16 April 2021, at Exhibit C-0515-FRA, p. 1. ↩

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vers des sources d'énergie beaucoup moins émettrices de GES, et ce, dans les différents marchés internationaux visés ?”⁴¹⁴

297 In the final version of the questions sent to GNLQ on 26 April 2021, these two questions, which contained at least some guidance on the type of evidence required from GNLQ, were merged into a single vague question, which speaks for itself:

“L'initiateur doit indiquer s'il a de nouveaux éléments à ajouter, par rapport à ce qu'il a déjà présenté dans l'ensemble des documents constituant son dossier de demande d'autorisation gouvernementale, concernant le scénario à l'effet que son projet permettrait une réduction des émissions de GES au niveau mondial ou concernant son effet sur la transition énergétique.”⁴¹⁵

298 Third, it transpires that the MELCC set aside only four working days (4, 7, 8 and 9 June) for its experts to review GNLQ's answers submitted on 3 June 2021. This was insufficient by any standard.⁴¹⁶ Indeed despite the time constraints, GNLQ had managed to put together no less than 394 pages of highly technical information aiming to address to the best it could all three subjects.⁴¹⁷ It is inconceivable that the MELCC's experts, and the MELCC itself, could have properly taken these answers into account in just four days.

299 Finally, on this topic as well, the Respondent has refused to produce a substantial number of documents, despite the Tribunal's order to do so, and specifically documents in response to the Claimant's requests for:

⁴¹⁴ MELCC, Table of main issues for the GNLQ Project dated 16 April 2021, at Exhibit C-0515-FRA, p. 2. ↩

⁴¹⁵ MELCC, Addendum to the request for undertakings and additional information of 3 March 2021 (26 April 2021), at Exhibit C-0268-FRA, p. 2 (Question 52). ↩

⁴¹⁶ Internal MELCC email correspondence between M. Gagnon and M. Duquette between 25 May 2021 and 26 May 2021, at Exhibit C-0518-FRA, p. 1. ↩

⁴¹⁷ GNLQ, Answers to questions and commitments requested by the MELCC dated 3 June 2021, at Exhibit C-0068-FRA. ↩

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• comments on drafts of the MELCC Report, dated between January and June 2021 (Request No. 7);⁴¹⁸
• Minister Charette's recommendation to the Québec Government regarding the GNLQ Project issued pursuant to Article 31.5 EQA and any drafts thereof, as well as related documents dated between 3 June and 21 July 2021 (Request No. 8);⁴¹⁹
• drafts of Decree dated between 10 March and 21 July 2021 (Request No. 9);⁴²⁰ and
• documents, including meeting agendas, minutes of meetings and transcripts, recording the Québec Cabinet's deliberations leading to Decree and dated 30 June to 21 July 2021 (Request No. 10).⁴²¹

300 As part of the latter category (Request No. 10), the Respondent has refused to produce a [Redacted]

[Redacted]

[Redacted]

[Redacted]

[Redacted]

[Redacted] i.e., well before the finalisation of the MELCC Report (on 30 June 2021), and thus well before its review, when the MELCC Report was to include an analysis of GNLQ's responses to the new questions posed on 26 April 2021 on the Minister's “core criteria”.⁴²³

⁴¹⁸ See PO4, Annex A, p. 36 et seq. (Request 7); List of documents responsive to Request No. 7 that the Respondent has refused to produce, at Exhibit C-0519-ENG-FRA. ↩

⁴¹⁹ See PO4, Annex A, p. 40 et seq. (Request 8); List of documents responsive to Request No. 8 that the Respondent has refused to produce, at Exhibit C-0520-ENG-FRA. ↩

⁴²⁰ See PO4, Annex A, p. 43 et seq. (Request 9); List of documents responsive to Request No. 9 that the Respondent has refused to produce, at Exhibit C-0521-ENG-FRA. ↩

⁴²¹ See PO4, Annex A, p. 45 et seq. (Request 10); List of documents responsive to Request No. 10 that the Respondent has refused to produce, at Exhibit C-0522-ENG-FRA. ↩

⁴²² See List of documents responsive to Request No. 10 that the Respondent has refused to produce, at Exhibit C-0522-ENG-FRA, p. 1 (PRIV290) (emphasis added). ↩

⁴²³ According to the MELCC's own schedule, the draft decree was logically supposed to be prepared after the MELCC Report, not before. See Email correspondence between J. ↩

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301 [Redacted]

[Redacted]⁴²⁴

302 Again, had these documents, including the [Redacted] been supportive of the Respondent's narrative, the Respondent would have produced them voluntarily, and certainly upon the Tribunal's order.

303 The Tribunal should therefore draw the following adverse inferences from the Respondent's refusal to produce those documents:

1. The Minister of Environment prepared a draft decree refusing the GNLQ Project on 17 June 2021, whereas it was improper for him to make any kind of recommendation, let alone a recommendation to refuse the GNLQ Project, before having received the MELCC Report on 30 June 2021.
2. The Minister of Environment prepared a draft decree refusing the GNLQ Project before having received the MELCC Report because (i) the decision of the Québec Government to refuse the GNLQ Project had already been made in March 2021, when the Government decided that Minister Charette should raise three new core criteria to pave the way for the refusal of the GNLQ Project,⁴²⁵ and (ii) the real grounds for the refusal of the GNLQ Project had nothing to do with the outcome of the EA presented in the MELCC Report.

2.5.4 The Quebec Government's decision not to authorise the GNLQ Project was based on illegal, predetermined and spurious grounds

304 In the Memorial, the Claimant showed that the Québec Government's decision to reject the GNLQ Project was unlawful under Québec law,

Bissonnette (MELCC) and N. Gleeton (MELCC) between 28 and 29 May 2021, at Exhibit C-0523, p. 4 et seq.

⁴²⁴ See List of documents responsive to Request No. 10 that the Respondent has refused to produce, at Exhibit C-0522-ENG-FRA, p. 1 et seq. ↩

⁴²⁵ See paragraph 252 above. ↩

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because it was based on erroneous grounds outside the MELCC's jurisdiction.⁴²⁶

305 In the Counter-Memorial, the Respondent disputes the allocation of powers between Québec and the federal authorities and argues that Québec could reach a decision on any ground it wanted, regardless of whether it fell within the scope of federal power.⁴²⁷ In addition, while the Respondent does not dispute that the grounds invoked were unprecedented, it maintains that they were legitimate.

306 As explained below, the Respondent's position is wrong in that, the Québec Government's decision was unlawful as based on grounds outside the Québec jurisdiction (Section 2.5.4.1). Furthermore, the decision was based on unprecedented grounds, which specifically targeted the Project (Section 2.5.4.2) and were both speculative and erroneous (Section 2.5.4.3).

2.5.4.1 The Québec Government's Decree was unlawful as it was based on grounds outside its jurisdiction and the MELCC Directive

307 In the Memorial, the Claimant, supported by the expert opinion of Me Duchaine, demonstrated that the Québec Government's decision to reject the Project was unlawful under Québec law, because it was based on aspects that fall squarely within the federal jurisdiction of the Government of Canada, namely public property, navigation, the protection of beluga whales and international trade.⁴²⁸

308 In its Counter-Memorial, the Respondent does not deny that these aspects were federal prerogatives. Instead, it erroneously reasserts that the Québec Government was entitled to conduct an EA and make a decision in relation to matters that fell under federal jurisdiction.⁴²⁹

⁴²⁶ Memorial, p. 101 et seq. (para. 311); Duchaine I, at Exhibit CER-1, p. 50. ↩

⁴²⁷ Counter-Memorial, p. 27 (para. 71). ↩

⁴²⁸ Memorial, p. 101 et seq. (para. 311); Duchaine I, at Exhibit CER-1, p. 50. ↩

⁴²⁹ Counter-Memorial, p. 27 (para. 71). ↩

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As explained in Section 2.3.1 above, Me Duchaine confirmed in her second report that:

• there is no support for Me Yergeau's position that the Québec Government could usurp federal prerogatives simply because it had decided to initiate a provincial EA;⁴³⁰
• on the contrary, all of the constitutional doctrines governing the allocation of powers between the federal and the provincial levels of government point to the same conclusion: the Québec Government should have declined jurisdiction over the EA of the GNLQ Project and either let the federal authorities take precedence or requested a joint assessment pursuant to the Canada-Québec Agreement;⁴³¹
• the allocation of powers between the federal and provincial levels of government was in any event reflected in the MELCC Directive, which did not include references to maritime traffic, the protection of beluga whales or upstream or downstream GHG emissions – this ought to have prevented the MELCC from addressing these issues in the MELCC Report, the Minister of Environment from taking these matters into account in his recommendation to the Cabinet and the Cabinet from making a decision on the basis of these issues.⁴³²

310 The Québec Government should therefore not have rendered a decision on the GNLQ Project in the first place on the grounds it did.

2.5.4.2 The Québec Government's decision was based on unprecedented grounds that specifically targeted the GNLQ Project

311 In the Memorial, the Claimant explained that the Québec Government rejected the Project on the basis of five grounds, including the reduction of

⁴³⁰ Duchaine II, at Exhibit CER-1 (Second), p. 30 et seq. (paras. 106-114). See also paragraphs 137-139 above. ↩

⁴³¹ Duchaine II, at Exhibit CER-1 (Second), p. 33 (para. 115); see also p. 13 et seq. (paras. 48-114); Sections 2.3.1.1 and 2.3.1.2 above. ↩

⁴³² Duchaine II, at Exhibit CER-1 (Second), p. 108 et seq. (paras. 301-309). See also paragraphs 183-186 above. ↩

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global GHG emissions and the energy transition, that had never been applied before, and have not been applied since.⁴³³

312 [Redacted]

[Redacted]

[Redacted]

[Redacted]

[Redacted]

[Redacted]

[Redacted]

[Redacted]⁴³⁴

313 In its response, the MELCC confirmed that these criteria had been devised to target the GNLQ Project and would not be used as a matter of course in future assessments:

[Redacted]

[Redacted]

[Redacted]

[Redacted]

[Redacted]

[Redacted]⁴³⁵

314 In its Counter-Memorial, the Respondent does not deny that the Québec Government relied on unprecedented criteria to reject the GNLQ Project.

⁴³³ Memorial, p. 55 (para. 143) and p. 98 (para. 297). ↩

⁴³⁴ [Redacted] at Exhibit C-0280-FRA. See Memorial, p. 98 (para. 298). ↩

⁴³⁵ [Redacted] at Exhibit C-0281-FRA. See Memorial, p. 98 (para. 298). ↩

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Mr Duquette also confirms that the energy transition and reduction of global GHG emissions criteria have never been used in any other projects.⁴³⁶

315 Instead, the Respondent seeks to downplay [Redacted]

[Redacted]

[Redacted]

[Redacted]⁴³⁷

316 However, this statement does not sit well with the Respondent's subsequent attempt to strike the exchange from the record on alleged grounds of political sensitivity – an attempt that was rejected by the Tribunal.⁴³⁸ Nor does it sit well with the Respondent's refusal to produce – despite the Tribunal's order – the final version of Exhibit C-281.⁴³⁹

317 The Respondent's efforts to downplay [Redacted] is further belied by the minutes of a meeting held in November 2021 between the MELCC and the MEI, referred to above, during which the MELCC confirmed that Minister Charette's three

⁴³⁶ See Duquette, at Exhibit RWS-5, p. 27 (para. 58). ↩

⁴³⁷ Counter-Memorial, p. 260 et seq. (para. 656). ↩

⁴³⁸ Respondent's Request to exclude Exhibits C-280 and C-281 from the record dated 4 November 2024; PO4, Annex A, p. 7 et seq. ↩

⁴³⁹ [Redacted] The Tribunal had ordered the production of these documents if they corresponded to the final version of Exhibit C-281. See Respondent's letter to the Tribunal dated 28 March 2025, p. 1; see Procedural Order No. 11 Decision on production of privileged documents dated 11 April 2025, p. 20 (para. 103); [Redacted] that the Respondent has refused to produce, at Exhibit C-0524-ENG-FRA. ↩

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"core criteria" had been added by the Québec Government for political reasons, as a result of its change of position regarding the GNLQ Project.⁴⁴⁰

2.5.4.3 The Québec Government's decision was based on grounds that were speculative and erroneous

318 It is not disputed that, on 21 July 2021, the Québec Government refused to authorise the GNLQ Project.⁴⁴¹

319 The Respondent also admits that the MELCC Report did not find that the GNLQ Project had any genuinely problematic environmental impact, but merely that GNLQ “n'avait pas réussi à suffisamment dissiper les nombreuses incertitudes entourant les effets du projet sur les émissions de GES et la transition énergétique ainsi que sur la population de bélugas de l’ESL ”.⁴⁴² In other words, the Project was denied on the basis of alleged uncertainties as to how it might impact the environment, not on the basis of any objective, science-based analysis of its actual impact.

320 This is indeed what transpires from a review of each of the grounds in relation to which the MELCC identified such uncertainties, and which were mentioned by the Québec Government in the Decree as a basis for its decision.

321 The Québec Government invoked five alleged “uncertainties" as grounds for its decision:

1. uncertainty regarding the impact of the GNLQ Project on Québec's efforts to reach its target to reduce GHG emissions in Québec, and the reduction of worldwide GHG emissions;
2. uncertainty regarding the impact of the GNLQ Project on the energy transition;

⁴⁴⁰ See paragraph 253 above. Internal MELCC email correspondence between M. Gagnon, N. Gleeton and J. Bissonnette from 28 November 2021 to 1 December 2021, at Exhibit C-0510-FRA, p. 3 et seq. (emphasis added). ↩

⁴⁴¹ Counter-Memorial, p. 54 (para. 143); Decree 1071-2021 dated 21 July 2021, at Exhibit C-0274-FRA. ↩

⁴⁴² Counter-Memorial, p. 53 (para. 140). ↩

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iii) uncertainty regarding the costs and benefits of the GNLQ Project;

iv) uncertainty regarding the social acceptability of the GNLQ Project; and

v) uncertainty concerning the impact of navigation on the beluga whale population of the St. Lawrence River.

322 The Claimant has already addressed and demonstrated in Section 2.5.1 above that the Government's reliance on the MELCC's flawed cost-benefit analysis (third ground) was unjustified. The same goes for the other grounds invoked by the Québec Government, which are addressed in turn (the first and second grounds being addressed together).

(i) The requirements to contribute to the reduction of global GHG emissions and to the energy transition were politically driven and highly speculative

323 The Respondent acknowledges in its Counter-Memorial that, during the press conference at which he announced the Decree, Minister Charette emphasised that GNLQ had failed to establish that the GNLQ Project would promote the energy transition, or contribute to a decrease of worldwide GES emissions, i.e., two of the three “core criteria" introduced four months earlier.⁴⁴³ These requirements were politically driven, highly speculative and intentionally framed without objective standards that could be met.

324 First, these criteria were added at the eleventh hour through the Québec Government's undue political interference with the EA process, as demonstrated above (Section 2.5.3).

325 Second, the MELCC's conclusion that there were uncertainties as to whether the Project met these criteria of reduction of worldwide GHG emissions and promotion of the energy transition, was highly subjective and speculative and ignored robust expert opinions.

⁴⁴³ Counter-Memorial, p. 54 (para. 144); TACT, Transcript of press conference dated 22 July 2021, at Exhibit C-0284-ENG-FRA. ↩

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326 Indeed, the MELCC's conclusion on these issues⁴⁴⁴ was contradicted by the conclusions of its own experts: the Direction de l'expertise climatique (“DEC”), the Direction générale de la réglementation carbone et des données d'émission (“DGRCDE") and the Direction de la prospective climatique et de l'adaptation (“DPCA”) were all consulted by the MELCC for their expertise in relation to GHG emissions and the energy transition, and all concluded that the GNLQ Project was acceptable from that perspective.⁴⁴⁵ More specifically, the DEC concluded:

“Le projet n'est pas incompatible avec les objectifs de réduction de GES du Québec ni avec les exigences de réduction de GES établies dans l'Accord de Paris.”⁴⁴⁶

327 The Respondent contends in the Counter-Memorial that these statements of acceptability were qualified or included additional conditions that affected their reliability.⁴⁴⁷ This is incorrect.

328 None of the qualifications affected the conclusions reached by these entities that the GNLQ Project was acceptable from an environmental perspective.⁴⁴⁸ As for the DPCA's conditions regarding the acceptability of the Project, namely the preparation of a plan to achieve carbon neutrality and the reduction of the duration of the GNLQ Project to 25 years, they would have posed no difficulties to GNLQ: they had been anticipated and were already in the course of being fulfilled, as GNLQ had communicated to the MELCC.⁴⁴⁹ Furthermore, as mentioned above in Section 2.5.3.3, the

⁴⁴⁴ MELCC Report, at Exhibit C-0269-FRA, p. vii. ↩

⁴⁴⁵ Compilation of opinions from consultations with ministries and organisations concerning the GNLQ Project (June 2021), at Exhibit C-0032-FRA, p. 48 (Direction de l'expertise climatique), p. 54 (Direction générale de la réglementation carbone et des données d'émission), p. 59 (Direction de la prospective climatique et de l'adaptation). ↩

⁴⁴⁶ Compilation of opinions from consultations with ministries and organisations concerning the GNLQ Project (June 2021), at Exhibit C-0032-FRA, p. 48 (last paragraph). ↩

⁴⁴⁷ Counter-Memorial, p. 52 (para. 139). ↩

⁴⁴⁸ Le Verger II, at Exhibit CWS-3 (Second), p. 43 et seq. (paras. 136-138). ↩

⁴⁴⁹ Le Verger II, at Exhibit CWS-3 (Second), p. 45 (para. 139). See Compilation of opinions from consultations with ministries and organisations concerning the GNLQ Project (June 2021), at Exhibit C-0032-FRA, p. 42; Email from Will Solutions to GNLQ (with attachment) dated 27 January 2020, at Exhibit TLV-0142-FRA. The Respondent acknowledges that GNLQ had ↩

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MELCC itself had previously agreed with the DEC that the SPEDE mechanism, which would have enabled GNLQ to offset its GHG emissions, was an appropriate mitigation measure in relation to GHG emissions.⁴⁵⁰

329 In other words, the MELCC elected to ignore both the opinion of its own experts and its own legally enshrined mitigation measures, and instead speculated that GNLQ could not guarantee that it would promote the energy transition and reduce GHG emissions.

330 As explained by Me Duchaine in her second report, the Guide d'élaboration et de rédaction du rapport d'analyse environnementale à l'intention des chargés de projet, applicable to the preparation of the MELCC Report, provide that the normal practice for the MELCC is to follow the opinion of the experts consulted.⁴⁵¹ Any deviation from the experts' opinion therefore should have been explained and justified.⁴⁵² The MELCC Report does not contain any such justification or explanation for ignoring the opinion of its own experts. This is all the more surprising given that, except for the MFFP which did not provide any opinion, all the experts consulted during the EA of the GNLQ Project, not only those in charge of analysing the GHG emissions aspect, opined that the GNLQ Project was acceptable.⁴⁵³

331 Furthermore, as explained by Mr Le Verger in his second witness statement, the MELCC also deliberately ignored GNLQ's commitment to supply LNG to isolated regions in Québec to replace more polluting fuels, like fuel oil and gasoil.⁴⁵⁴ Mr Le Verger demonstrates that, assuming the LNG supplied locally could replace more polluting fuel, it would be

committed to make the GNLQ Project carbon neutral: Counter-Memorial, p. 45 (paras. 120-121).

⁴⁵⁰ See [Redacted] at Exhibit C-0494-FRA, p. 6 ↩

⁴⁵¹ Duchaine I, at Exhibit CER-1, p. 110 (para. 308). ↩

⁴⁵² Duchaine I, at Exhibit CER-1, p. 110 (para. 308). ↩

⁴⁵³ See Compilation of opinions from consultations with ministries and organisations concerning the GNLQ Project (June 2021), at Exhibit C-0032-FRA. ↩

⁴⁵⁴ Le Verger II, at Exhibit CWS-3 (Second), p. 8 (para. 15). ↩

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sufficient to make the GNLQ Project carbon neutral at Québec's level, thereby suppressing its impact on Québec's ability to reach its GHG-reduction targets.⁴⁵⁵

332 In this respect, on 20 July 2021, the day before the Québec Government's Decree rejecting the GNLQ Project on the ground of uncertainty as to its ability to promote the energy transition, the Québec Minister of Energy and Natural Resources, Jonatan Julien, declared in relation to an investment in the development of the natural gas distribution network that "[l]e gaz naturel est une énergie de transition profitable pour le Québec".⁴⁵⁶ This confirms that the Québec Government's decision to reject the GNLQ Project cannot not have been based on genuinely held, science-based opinions.

333 Third, as articulated by the MELCC in its questions of 26 April 2021 under the guidance of Minister Charette, the requirements of improving the energy transition and reducing GHG emissions at a global level were, by design, impossible to meet in the absence of objective criteria. Tellingly, neither the MELCC in its Report, nor the Respondent in this arbitration, provided any indication as to what GNLQ would have had to establish to meet these two new “core criteria". The few elements the Respondent and its witnesses indicate as missing show that the threshold imposed by Minister Charette was, in fact, unattainable.

334 In the Counter-Memorial, the Respondent indeed reiterates the MELCC's argument that it would have been necessary for GNLQ to identify all of its future customers and to provide both their geographical position and contracts with GNLQ, to determine whether the LNG sold to them by GNLQ would have likely replaced other more polluting fuels consumed by these clients in their respective countries.⁴⁵⁷ This was totally unrealistic.

335 To start with, providing contracts with future customers would have been an impossible hurdle to overcome. As acknowledged by NRCan in an

⁴⁵⁵ Le Verger II, at Exhibit CWS-3 (Second), p. 11 (para. 20). ↩

⁴⁵⁶ MERN, "Prolongement du réseau de distribution de gaz naturel - Québec investit plus de 1 M$ pour le développement économique en Montérégie", 20 July 2021, at Exhibit C-0396-ENG-FRA (emphasis added). ↩

⁴⁵⁷ See, e.g., Counter-Memorial, p. 116 et seq. (para. 318, 326 and 328). ↩

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internal exchange criticising the Québec Government's refusal of the GNLQ Project:

“Commercial agreements commonly are signed after a project secures regulatory approval to proceed, and would not include clauses committing to replace another fuel, since that is typically beyond the scope of the buyer's influence.”⁴⁵⁸

336 Even if GNLQ had been able to provide all contracts with all its future customers, to satisfy the MELCC, it would have been required to prove:

• that these customers were otherwise consuming more polluting fuels, or would in turn sell GNLQ's LNG to customers or markets as an alternative to high coal or fuel oil consumption;
• that the price at which the LNG would be sold to these future customers would be sufficiently competitive to displace other more polluting fuels in the destination markets, or other markets if the LNG would be sold in another country after regasification; and
• that these assumptions would have remained valid over the whole duration of the Project, i.e., from 25 to 50 years, without any knowledge as to how the regulatory or geopolitical framework would evolve.

337 No LNG project could have ever met these requirements. In other words, regardless of the detailed information and assurances that GNLQ provided on 3 June 2021, GNLQ could not meet the burden imposed by the Québec Government and certainly not at that stage of the GNLQ Project.

(ii) GNLQ had demonstrated the social acceptability of the GNLQ Project within the meaning of Québec environmental law

338 In the Memorial, the Claimant established that, despite some opposition, the Project benefitted from strong local and regional support,⁴⁵⁹ including

⁴⁵⁸ Internal NRCan email correspondence between C. Evans and N. Vrany et al. from 22 January to 27 January 2022, at Exhibit C-0443-ENG, p. 4 (emphasis added). ↩

⁴⁵⁹ Memorial, p. 96 et seq. (paras. 291, 293-294). ↩

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after Minister Charette issued the three new “core criteria".⁴⁶⁰ It also demonstrated, with the support of Me Duchaine's expert opinion, that both Québec law and the MELCC Directive define social acceptability as a process rather than an objective outcome required to be reached.⁴⁶¹ The Claimant showed that, in such a context, the MELCC's decision to defer to the Government in relation to social acceptability, and the Government's reference to an alleged lack of social acceptability in its Decree, were incomprehensible.⁴⁶²

339 In its Counter-Memorial, the Respondent concedes that the notion of social acceptability remains controversial.⁴⁶³ However, it argues, based on Me Yergeau's report, that social acceptability corresponds to the “perception d'une menace qu'un projet peut laisser planer sur la vie ou la qualité de vie d'un milieu”,⁴⁶⁴ and concludes that the Québec Government reached its decision within this definition.⁴⁶⁵ For the following reasons, the Respondent's argument is unfounded.

340 First, the Respondent's allegation that the Québec Government even reached a decision on social acceptability is contradicted by the evidence. Minister Charette admitted during the press conference of 21 July 2021 that the Cabinet had not evaluated the social acceptability of the GNLQ Project, despite acknowledging that the GNLQ Project benefitted from considerable popular support, on the ground that the two other “core criteria" (i.e., the promotion of the energy transition and the global reduction of GHG emissions) had not been met:

“Nous avions trois conditions au départ. Souvenez-vous, au moment du dépôt du rapport du BAPE, j'avais exprimé les trois conditions : l'acceptabilité sociale, la transition énergétique et la baisse au niveau mondial. Nous n'avons pas eu à évaluer

⁴⁶⁰ Memorial, p. 96 (para. 290). ↩

⁴⁶¹ Memorial, p. 84 et seq. (para. 248); see Section 2.5.3.2(i) above. ↩

⁴⁶² Memorial, p. 95 et seq. (paras. 286-295). ↩

⁴⁶³ Counter-Memorial, p. 207 (para. 536). ↩

⁴⁶⁴ Counter-Memorial, p. 207 (para. 536), citing Yergeau, at Exhibit RER-2, p. 63 et seq. (paras. 173, 175-171, 247). ↩

⁴⁶⁵ Counter-Memorial, p. 207 (para. 536). ↩

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l'acceptabilité sociale compte tenu que les deux premières conditions n'étaient pas respectées. Nous sommes conscients qu'il y a des gens qui appuyaient très fortement ce projet et que d'autres exprimaient des réserves importantes, mais nous n'avons pas eu à évaluer et à pondérer les gens en faveur versus ceux en défaveur."⁴⁶⁶

341 In other words, although the Québec Government mentioned the alleged "uncertainties" regarding the social acceptability of the GNLQ Project as part of the grounds for rejecting it in the Decree,⁴⁶⁷ Mr Charette's statement confirms that the Québec Government did not even assess the Project on that basis.

342 Second, as the MELCC acknowledged in its report, “pour certains, indépendamment des mesures et des mécanismes qui pourraient être mis en place, ce type de projet de développement ne trouvera jamais un accueil favorable".⁴⁶⁸ Stated differently, a project of this nature will never have 100% support.

343 As explained by Mr Le Verger, the MELCC failed to consider the level of support enjoyed by the GNLQ Project, regardless of the inevitable polarisation it generated as a large industrial project.⁴⁶⁹ Mr Le Verger notes in particular that the MELCC and the Québec Government failed to consider the letters of support received from elected officials of local cities and towns, as well as local investors and associations.⁴⁷⁰ Contrary to

⁴⁶⁶ TACT, Transcript of press conference dated 22 July 2021, at Exhibit C-0284-ENG-FRA, p. 4 (emphasis added). ↩

⁴⁶⁷ Decree 1071-2021 concerning the refusal to issue an authorisation for the GNLQ project to build a natural gas liquefaction complex on the territory of the city of Saguenay dated 21 July 2021, at Exhibit C-0274-FRA, p. 3. ↩

⁴⁶⁸ MELCC Report, at Exhibit C-0269-FRA, p. 65. ↩

⁴⁶⁹ Le Verger II, at Exhibit CWS-3 (Second), p. 38 et seq. (paras. 118-122). ↩

⁴⁷⁰ Le Verger II, at Exhibit CWS-3 (Second), p. 49 et seq. (para. 155), Letter from R. Martel (House of Commons of Canada) to Minister Charette dated 15 May 2020, at Exhibit TLV-0143-FRA; Letter from the Fédération des chambres de commerce du Québec to P. Bourke (BAPE) dated 20 May 2020, at Exhibit TLV-0144-FRA; La Tuque Agglomeration Council, Excerpt from the minutes of the regular meeting dated 15 September 2020, at Exhibit TLV-0145-FRA; Letter from the City of La Tuque to Minister Fitzgibbon dated 14 May 2020, at Exhibit TLV-0146-FRA; Letter from the City of Saguenay to GNLQ dated 3 May 2016, at Exhibit TLV-0147-FRA. ↩

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various pressure groups, who are capable of creating a semblance of opposition far beyond their representation, elected officials actually represent the population who elected them, a difference that should have carried more weight.⁴⁷¹

344 More importantly, neither the MELCC nor the Québec Government ever argued, let alone provided evidence, that the GNLQ Project was not socially acceptable.

345 Third, Me Duchaine explains in her Second Report that the Respondent's presentation of the EQA on this issue is partial in the sense that it ignores the purpose of this law, which is to authorise projects.⁴⁷² Accordingly, the EQA does not set a threshold beyond which projects cannot be authorised, but rather requires Québec authorities to identify the conditions under which a specific project may be authorised.⁴⁷³ In the words of the MELCC itself, the EQA is a “loi d'autorisation”.⁴⁷⁴

346 This aspect of the EQA informs the concept of social acceptability and its boundaries. A project with significant local support cannot be excluded simply because it is met with some opposition. For instance, before Minister Charette decided to dictate three new "core criteria", [Redacted]⁴⁷⁵ In other

⁴⁷¹ Le Verger II, at Exhibit CWS-3 (Second), p. 49 et seq. (para. 155), Municipality of Saint-François-de-Sales, Excerpt from the minutes or copy of the resolution dated 7 June 2021, at Exhibit TLV-0148-FRA; Municipality of Lac-Bouchette, Excerpt from the minutes of the regular meeting of "Support for the Énergie Saguenay (GNL) project" dated 3 May 2021, at Exhibit TLV-0149-FRA; International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers, “Local 711 Supports the Énergie Saguenay Project", at Exhibit TLV-0150-FRA; Municipality of Saint-David-de-Falardeau, Excerpt from the minutes of the regular meeting dated 5 April 2021, at Exhibit TLV-0151-FRA; Annex R53, Resolutions from various municipal councils, at Exhibit TLV-0152-FRA; Saguenay City Council, Excerpt from the minutes of the regular meeting of the, "Support for the GNL Québec Project" dated 6 April 2021, at Exhibit TLV-0153-FRA. ↩

⁴⁷² Duchaine II, at Exhibit CER-1 (Second), p. 80 et seq. (para. 239-245). ↩

⁴⁷³ Duchaine II, at Exhibit CER-1 (Second), p. 84 (para. 245). ↩

⁴⁷⁴ Duchaine II, at Exhibit CER-1 (Second), p. 82 (para. 243) and p. 149 et seq. (para. 379). ↩

⁴⁷⁵ [Redacted] at Exhibit C-0494-FRA, p. 5 et seq. ↩

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words, the MELCC was working under the assumption that the GNLQ Project would be authorised and that the process of gaining social acceptability would follow its course. Unfortunately, following the issuance of the "core criteria" by Minister Charette, the MELCC abandoned this course of action, electing instead in the MELCC Report to defer to the Government regarding the decision on social acceptability.⁴⁷⁶

347 Fourth, Québec's decision-making in relation to the approval of other industrial projects does not depend on whether the relevant local population "per[çoit] une menace qu'un projet peut laisser planer sur la vie ou la qualité de vie d'un milieu”.⁴⁷⁷ The following two examples provide a good illustration of this point:

• The Québec Government recently proposed a law that would allow the expansion of a landfill site, notwithstanding the BAPE's recommendation not to proceed with it given the impact of such a project on the environment and its lack of social acceptability.⁴⁷⁸ The local population's view, as expressed through the BAPE, was not determinative.
• For the Northvolt project, which envisages the construction of an electric vehicle battery plant, the Québec Government eased EA process requirements to circumvent altogether public consultations before the BAPE.⁴⁷⁹ The local population's views, as would have been considered through the BAPE, were therefore not considered. While

⁴⁷⁶ MELCC Report, at Exhibit C-0269-FRA, p. 64 et seq. ↩

⁴⁷⁷ Counter-Memorial, p. 207 (para. 536), citing Yergeau, at Exhibit RER-2, p. 63 et seq. (paras. 173, 175, 175-171, 247). ↩

⁴⁷⁸ "Des avocats spécialisés en environnement dénoncent le projet de loi en faveur d'un stockage de déchets dangereux par Stablex à Blainville", Le Devoir, 28 February 2025, at Exhibit C-0525-FRA. ↩

⁴⁷⁹ See "Québec admet avoir voulu éviter l'examen du BAPE à Northvolt", Radio-Canada, 6 March 2024, at Exhibit C-0526-FRA (“Pour la toute première fois, le ministre de l'Environnement Benoit Charette avoue avoir délibérément aidé Northvolt à éviter l'examen du Bureau d'audiences publiques sur l'environnement (BAPE) par crainte de perdre le projet. [...] 'Si on n'avait pas pu donner de réponse à l'entreprise, que ce soit Northvolt ou une autre, avant 18 ou 24 mois, c'est certain que ces entreprises auraient retenu un autre lieu pour s'implanter.' Benoit Charette, ministre de l'Environnement du Québec, en entrevue avec Radio-Canada."). See also "Une majorité de Québécois rejettent l'approche caquiste dans le dossier Northvolt", Le Devoir, 28 February 2024, at Exhibit C-0527-FRA. ↩

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the population had previously raised biodiversity concerns over the project site, which had justified the refusal of a prior project, the project was authorised in 2024.⁴⁸⁰

348 Finally, Me Duchaine shows in her second report that, in five instances, the Québec Government approved projects, notwithstanding a finding by the BAPE that the project was not socially acceptable (i.e., where the BAPE did not just refuse to issue a recommendation, as in the case of the GNLQ Project, but issued a recommendation not to authorise the project in question).⁴⁸¹ Likewise, Me Duchaine shows that, even when projects, other than these five projects, were subjected to a new evaluation following the BAPE's adverse findings regarding social acceptability, they were eventually approved.⁴⁸²

(iii) The MELCC's conclusions related to the protection of beluga whales disregarded GNLQ's commitments and were unsupported by scientific evidence

349 As explained in the Memorial, in March 2021, the MELCC adopted a zero-tolerance policy on underwater noise by concluding that GNLQ should consider suspending all maritime traffic over the summer period.⁴⁸³ That policy stood in stark contrast to the MELCC's previous approach of focusing on mitigation measures GNLQ could implement.⁴⁸⁴ The MELCC adopted this new approach in its report by relying on a preliminary and unpublished study, on which GNLQ was not given an opportunity to comment.⁴⁸⁵

⁴⁸⁰ See "Québec a retiré des arguments scientifiques de son analyse", Radio-Canada, 21 February 2024, at Exhibit C-0528-FRA. See also "Northvolt: gestion de crise interne au ministère de l'Environnement", Radio-Canada, 28 February 2024, at Exhibit C-0529-FRA. ↩

⁴⁸¹ Duchaine II, at Exhibit CER-1 (Second), p. 114 et seq. (para. 317, fourth bullet point). ↩

⁴⁸² Duchaine II, at Exhibit CER-1 (Second), p. 114 et seq. (para. 317, fourth bullet point). ↩

⁴⁸³ Memorial, p. 88 et seq. (paras. 263-269 and 277). See also MELCC Report, at Exhibit C-0269-FRA, p. 34 ("L'équipe d'analyse est d'avis que la mesure la plus efficace pour contrer les effets du bruit demeure l'évitement"). ↩

⁴⁸⁴ Memorial, p. 61 et seq. (paras. 167-186). ↩

⁴⁸⁵ Memorial, p. 93 (para. 278). ↩

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350 In the Counter-Memorial, the Respondent argues that: (i) GNLQ was aware that the protection of beluga whales was a major issue in the EA of the GNLQ Project;⁴⁸⁶ (ii) the MELCC could validly reach its conclusions on the basis of an unpublished study;⁴⁸⁷ and (iii) the mitigation measures proposed by GNLQ were not proven to be effective.⁴⁸⁸ Each of these contentions is baseless.

351 First, it is uncontested that GNLQ, at the outset and since its early studies on the project, was aware of the presence of beluga whales in the Saguenay area.⁴⁸⁹ However, the Respondent's allegation that the Prime Minister of Québec and the Minister of Energy and Resources had warned GNLQ during a meeting on 20 May 2015 that the protection of beluga whales would be an issue in the provincial EA of the GNLQ Project is a gross misrepresentation.⁴⁹⁰ In reality, the “key point[]" of the meeting was that "[b]elugas will be an issue brought by national environment[al] groups", something the Minister of Energy and Resources was “not afraid of”.⁴⁹¹

352 Likewise, the Respondent's contention that TransCanada's Energy East project, which initially included a marine terminal at Cacouna that was eventually abandoned, should have served as a cautionary tale for GNLQ in relation to how the protection of beluga whales could affect a project, is disingenuous.⁴⁹² GNLQ had clarified, during its 20 May 2015 meeting with the Prime Minister, “the key characteristics which make [the GNLQ Project] different from TransCanada Energie-Est project”.⁴⁹³ As Mr Le

⁴⁸⁶ Counter-Memorial, p. 39 et seq. (paras. 108-110, 114, 119-120 and 122-123). ↩

⁴⁸⁷ Counter-Memorial, p. 193 et seq. (paras. 511-513). ↩

⁴⁸⁸ Counter-Memorial, p. 53 (para. 142). ↩

⁴⁸⁹ See Bidwai I, at Exhibit CWS-2, p. 15 et seq. (paras. 48-57). ↩

⁴⁹⁰ Counter-Memorial, p. 39 (para. 108). ↩

⁴⁹¹ Internal email correspondence between J. Illich and M.-C. Lavigne from 20 May 2015 to 21 May 2015, at Exhibit C-0379-ENG, p. 1 (emphasis added). ↩

⁴⁹² Counter-Memorial, p. 40 (para. 109). See also Mémoire du Centre Québecois du Droit de l'Environnement à titre d'amicus curiae dated 25 September 2024, p. 8 (paras. 29-30) (wrongly arguing that "[i]l y a d'ailleurs plusieurs similitudes entre le projet Énergie Est et le projet faisant l'objet du présent litige"). ↩

⁴⁹³ Internal email correspondence between J. Illich and M.-C. Lavigne from 20 May 2015 to 21 May 2015, at Exhibit C-0379-ENG, p. 1. ↩

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Verger summarises in his second witness statement, the Energy East project was fundamentally different from the GNLQ Project, in that:

• Energy East consisted of an oil pipeline and marine terminals, with a much higher risk of pollution than an LNG liquefaction facility;
• the Cacouna marine terminal would have been located in the protected area of Gros Cacouna, known as “the beluga whales' nursery", an area that GNLQ had specifically avoided for this very reason;⁴⁹⁴ and
• contrary to the GNLQ Project, the development of the Cacouna marine terminal would have involved continuous underwater works, including dredging, which would have damaged the surrounding environment.⁴⁹⁵

353 Furthermore, contrary to what the Respondent appears to imply, the abandonment of the Energy East project is not an example of the Québec and Federal Governments' favour for beluga whale protection over economic development. Even though TransCanada cancelled the Cacouna marine terminal element of the Energy East project in April 2015, it did so not as a result of some policy measure enacted by the Québec or Federal Government, but at its own election, in part because a judge had injuncted it from conducting certain works in the area.⁴⁹⁶ Furthermore, the Québec Government had previously authorised an LNG terminal project at Cacouna in 2007 (i.e., the Cacouna LNG project – see Section 4.2.2.3(iii) below) and the Gros Cacouna area is currently being used as a port terminal by the Québec Ministry of Transports and is undergoing important development works, also involving dredging in a protected area.⁴⁹⁷

354 Second, it is undisputed that the MELCC Report relied on an unpublished, draft study on the alleged impact of subaquatic noise on beluga whales, on

⁴⁹⁴ See Bidwai I, at Exhibit CWS-2, p. 15 (para. 48). ↩

⁴⁹⁵ Le Verger II, at Exhibit CWS-3 (Second), p. 12 et seq. (para. 25). See also MELCC, Environmental Assessment Report for the Cacouna LNG project dated 22 June 2007, at Exhibit C-0350-FRA, p. 53 et seq. See also Bidwai I, at Exhibit CWS-2, p. 9 et seq. (para. 38). ↩

⁴⁹⁶ See O'Gorman, at Exhibit RER-4, p. 35 et seq. (para. 82). See also First Witness Statement of Adrienne Menzies dated 15 April 2025, at Exhibit CWS-7, p. 28 et seq. (paras. 81, 82d)). ↩

⁴⁹⁷ See Le Verger II, at Exhibit CWS-3 (Second), p. 13 et seq. (paras. 29-30). ↩

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which GNLQ was not able to comment.⁴⁹⁸ Mr Duquette argues that GNLQ was aware of the study, since it was presented during the BAPE hearings.⁴⁹⁹ This is misleading. As Mr Le Verger explains, “la présentation sommaire de cette étude lors des audiences du BAPE ne nous aurait pas permis d'en faire une analyse poussée.”⁵⁰⁰

355 Mr Duquette further argues that, in certain circumstances, the MELCC must refer to unpublished studies in its work, and that such circumstances existed in the EA of the GNLQ Project.⁵⁰¹ However, he does not identify those circumstances with precision.

356 In any case, the MELCC's approach was inconsistent. On the one hand, the MELCC based its conclusions on inconclusive science,⁵⁰² namely (i) a UQO study funded by the MFFP which only produced a preliminary report in December 2019,⁵⁰³ and no final study;⁵⁰⁴ and (ii) a problematic 2021

⁴⁹⁸ See Counter-Memorial, p. 193 et seq. (paras. 511-513). See also Memorial, p. 93 (para. 278). ↩

⁴⁹⁹ Duquette, at Exhibit RWS-5, p. 34 (para. 71). ↩

⁵⁰⁰ Le Verger II, at Exhibit CWS-3 (Second), p. 48 (para. 150). ↩

⁵⁰¹ Duquette, at Exhibit RWS-5, p. 34 (para. 71) ("[I]l peut arriver dans certaines circonstances qu'il soit nécessaire de recourir à une étude à paraître dans le cadre de l'analyse environnementale. Ces circonstances existaient dans le cadre du dossier sous étude"). Counter-Memorial, p. 194 (para. 512). ↩

⁵⁰² As noted by GNLQ and acknowledged by the MELCC. See MELCC Report, at Exhibit C-0269-FRA, p. 33 (“l'initiateur indique qu'il ne peut fournir avec certitude l'efficacité de ses mesures sur la population de bélugas puisque les données scientifiques disponibles ne permettent pas d'établir la contribution relative du bruit sous-marin au déclin du béluga ni de seuils au-dessous desquels le bruit des navires devrait se situer pour ne pas constituer une menace pour le béluga.") (emphasis added). See also Trépanier, at Exhibit RWS-11 (corrected), p. 16 (para. 39) (“Les données disponibles lors de l'analyse ne permettaient pas d'établir quel niveau de bruit additionnel pourrait être ajouté dans l'habitat du béluga sans le dégrader davantage jusqu'au point de compromettre la réalisation des fonctions vitales de l'espèce et son rétablissement."). ↩

⁵⁰³ See MELCC Report, at Exhibit C-0269-FRA, p. 35 and Le Verger II, at Exhibit CWS-3 (Second), p. 48 (para. 151) ("[J]'observe que cette étude préliminaire, dont les conclusions finales devaient être publiées en 2023 à la clôture du programme, est demeurée préliminaire. Aucune étude finale venant confirmer ces conclusions n'a jamais été publiée à ce jour"). See also Section 2.1.2 above. ↩

⁵⁰⁴ As of 2024, the UQO was still developing a simulator of the interactions between ships and beluga whales, and attempting to "[p]réciser les impacts des différents segments de la navigation sur ces animaux". See “Protection du béluga - 2,5 M$ attribués à l'Université du ↩

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draft study relied on by the MELCC, which warned that their estimates of the frequencies used by beluga whales of different ages are the only ones available, and “should be treated with caution”.⁵⁰⁵

357 On the other hand, the MELCC understood that prohibiting one promoter from navigating on the Saguenay River would not advance the protection of beluga whales. For instance, in a meeting with various Québec and federal agencies on 3 February 2021, the MELCC noted:

“La problématique du MELCC, considérant l'incertitude et l'état du béluga, réside dans une question d'équité avec les promoteurs existants qui génèrent de la navigation dans le Saguenay et qui pourraient augmenter cette navigation, sans devoir appliquer de mesures particulières. Le MELCC s'interroge s'il est possible de refuser un projet sur l'unique base des effets de l'augmentation du transport maritime. Considérant les autres projets, la problématique du transport et du béluga restera présente.”⁵⁰⁶

358 In an internal, undated document discussing potential questions for GNLQ, the MELCC admitted that "[l]es effets de la navigation et du bruit subaquatique sont méconnus, tout comme les mesures d'atténuation à favoriser".⁵⁰⁷ A comment on this point notes: “il me semble que l'un des enjeux est qu'on ne sait pas trop comment réduire l'impact, ne sachant pas trop comment il se fait sentir?”.⁵⁰⁸ The MELCC's conclusion that the GNLQ Project could cause harm to the beluga whales population was thus based on pure speculation and ill-founded.

Québec en Outaouais pour la poursuite de son Programme scientifique béluga-bruit", Cision, 9 April 2024, at Exhibit C-0530-FRA.

⁵⁰⁵ V. Vergara et al., "Can you hear me? Impacts of underwater noise on communication space of adult, sub-adult and calf contact calls of endangered St. Lawrence belugas (Delphinapterus leucas)", (2021) 40 5521 Polar Research, at Exhibit C-0375-ENG, p. 14 (emphasis added). ↩

⁵⁰⁶ Agency, Report of meeting between Agency, TC, PC, DFO, MELCC and MFFP dated 3 February 2021, at Exhibit C-0491-FRA, p. 5 (emphasis added). See also Agency, Report of meeting between Agency, PC, TC, DFO and MELCC dated 4 September 2020, at Exhibit C-0490-FRA, p. 3 (Where a representative of Transport Canada notes that: "Il est difficile d'exiger à un promoteur en particulier d'adopter des mesures pour contrecarrer des effets négatifs si les autres projets déjà existants ne sont pas soumis aux mêmes exigences."). ↩

⁵⁰⁷ MELCC, Table of main issues for the GNLQ Project, at Exhibit C-0531-FRA, p. 2. ↩

⁵⁰⁸ MELCC, Table of main issues for the GNLQ Project, at Exhibit C-0531-FRA, p. 2. ↩

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359 Third, the Respondent reiterates the MELCC's contention that the mitigation measures proposed by GNLQ were not effective.⁵⁰⁹ This too is disingenuous. In response to the MELCC's last-minute questions of 26 April 2021,⁵¹⁰ GNLQ had provided a list of confirmed noise-mitigation measures, the efficacy of which had been confirmed by Vard Marine Inc. ("Vard"), a leading consulting naval architecture and marine engineering company, in a study financed by Transport Canada in 2019.⁵¹¹

360 In a meeting among government agencies on 4 September 2020, the representative from Transport Canada had noted that the Vard study provided valuable information on noise-mitigation measures,⁵¹² especially given the lack of information on the subject.⁵¹³ In other words, the Vard study to which GNLQ referred in June 2021 was the best available reference for state-of-the-art noise-mitigation measures at the time.⁵¹⁴ Mr Keith Bainbridge, who advised GNLQ on matters related to shipping and noise mitigation measures, explains in his second witness statement that GNLQ was also in advanced discussions with shipbuilders, and would have been able to set a new standard for noise-mitigation measures on its ships.⁵¹⁵

⁵⁰⁹ Counter-Memorial, p. 53 (para. 142). ↩

⁵¹⁰ See Memorial, p. 90 (para. 269); MELCC, Addendum to the request for undertakings and additional information of 3 March 2021 (26 April 2021), at Exhibit C-0268-FRA, question 48. ↩

⁵¹¹ GNLQ, Answers to questions and commitments requested by the MELCC dated 3 June 2021, at Exhibit C-0068-FRA, p. 75 of the PDF. The Government of Canada also invested around CAD 30 million to support the development of a pioneer low-noise and low-emissions tanker by Teekay Shipping (Canada) Ltd. ("Teekay") (one of the world's leading energy marine transportation companies headquartered in Vancouver, British Columbia). See "Powered by cleaner Canadian LNG, new tankers to be up to 90 per cent quieter than traditional tankers" dated 30 August 2019, at Exhibit KB-0021-ENG. As Mr Bainbridge explains, Teekay was working on implementing measures similar to those that GNLQ was proposing (see Second Witness Statement of Keith Bainbridge dated 17 April 2025, at Exhibit CWS-4 (Second), p. 7 (fn. 16)). In other words, Canada was actively financing the implementation of measures similar to those the MELCC considered ineffective in its assessment of the GNLQ Project. ↩

⁵¹² Agency, Report of meeting between Agency, PC, TC, DFO and MELCC dated 4 September 2020, at Exhibit C-0490-FRA, p. 3. ↩

⁵¹³ Agency, Report of meeting between Agency, PC, TC, DFO and MELCC dated 4 September 2020, at Exhibit C-0490-FRA, p. 2. ↩

⁵¹⁴ Bainbridge II, at Exhibit CWS-4 (Second), p. 6 (para. 16). ↩

⁵¹⁵ Bainbridge II, at Exhibit CWS-4 (Second), p. 7 et seq. (para. 21). ↩

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361 In addition, the MELCC did not analyse GNLQ's proposed mitigation measures properly; it only commented on three of the nine measures put forward,⁵¹⁶ yet drew sweeping and unsubstantiated conclusions as to their effectiveness.⁵¹⁷ This approach contradicted the opinion of its own experts. Indeed, [Redacted]⁵¹⁸

362 Finally, the Respondent relies on the MELCC's conclusion that the GNLQ Project would have doubled the number of vessels crossing the Saguenay.⁵¹⁹ The Respondent omits to add that “doubling”, in this case, meant adding one passage per day. The proposed increase of 140-165 round-trip voyages each year for the GNLQ Project stands in stark contrast with the 65,000 to 91,000 total annual passages of ships of all sizes and purposes in the beluga habitat across the St. Lawrence and Saguenay Rivers (as explained in Section 2.1.2 above).

363 The documents produced by the Respondent in document production reveal the MELCC's true concern behind its desire to limit GNLQ's marine traffic. In an exchange of comments on a draft of the MELCC Report, Ms Mélissa Gagnon, deputy director of the MELCC's Direction of Environmental Assessments (Direction de l'évaluation environnementale et stratégique), wrote:

“l'autorisation du projet, en plus d'amener des effets dont les conséquences pourraient être importantes, viendrait doubler le transit actuel dans le Saguenay, ce qui signifie qu'à lui seul le projet de GNL Québec occuperait le même espace que l'ensemble des utilisateurs actuels. Cela me semble beaucoup pour un seul projet,

⁵¹⁶ See MELCC Report, at Exhibit C-0269-FRA, p. 33. ↩

⁵¹⁷ MELCC Report, at Exhibit C-0269-FRA, p. 34. ↩

⁵¹⁸ [Redacted] MFFP, Ministerial opinion to MELCC (20201023-28-17) dated 26 November 2020, at Exhibit C-0532-FRA, p. 1. See also Compilation of opinions from consultations with ministries and organisations concerning the GNLQ Project (June 2021), at Exhibit C-0032-FRA, p. 12 et seq. ↩

⁵¹⁹ Counter-Memorial, p. 53 (para. 142). ↩

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qui ne vise pas à répondre à un besoin du Québec, en approvisionnement en ressources, ni en exportation de nos ressources ou produits d'ici.”⁵²⁰

364 This statement eerily resonates with Premier Legault's statement in a 19 May 2022 radio interview that, contrary to the reasons stated in the Québec Government's Decree, the real reason for the rejection of the Project was not so much the protection of beluga whales, but rather the fact that it concerned natural gas coming from outside Québec to be exported outside Québec, (allegedly) without benefitting Québec.⁵²¹

365 As noted above, following the refusal of the GNLQ Project, [Redacted]⁵²²

366 The Respondent has refused to produce certain documents relating to this exchange, despite the Tribunal's order to do so,⁵²³ specifically documents relating to [Redacted]

⁵²⁰ Internal MELCC email correspondence between M. Duquette and C.-O. Laporte dated 21 June 2021, at Exhibit C-0533-FRA, p. 3 (emphasis added). See also Ms Gagnon's comments on an earlier draft, at MELCC, Draft of the Environmental Analysis Report (3211-10-021), at Exhibit C-0534-FRA, p. 32 (“l'autorisation du projet, en plus d'amener des effets dont les conséquences pourraient être importantes, viendrait doubler le transit actuel dans le Saguenay. ce qui signifie qu'à lui seul le projet de GNL Québec occuperait le même espace que l'ensemble des utilisateurs actuels. Cela me semble beaucoup pour un seul projet, qui ne vise pas à répondre à un besoin du Québec, n'y en approvisionnement en ressources ni en exportation de nos ressources ou produits d'ici. Ajouter aussi au besoin pour nuancer l'espace occupé par les utilisateurs actuels versus les potentiels autorisés comme le port de Saguenay et blackrock."). ↩

⁵²¹ Radio interview to Premier Legault, "Le show du matin" on Radio Station CKYK-FM 95.7, 19 May 2022, at Exhibit C-0033-FRA. See also Memorial, p. 95 (para. 283). ↩

⁵²² See Section 2.5.4.2 above. ↩

⁵²³ See PO4, Annex A, p. 45 (Request 10); List of documents responsive to Request No. 12 that the Respondent has refused to produce, at Exhibit C-0535; See [Redacted] at Exhibit C-0281, p. 1-2. ↩

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[Redacted]⁵²⁴

367 Had these documents been supportive to the Respondent's narrative, it would have produced them voluntarily or upon the Tribunal's order.

368 The Tribunal should therefore draw the following adverse inferences from the Respondent's refusal to produce these documents:

1. The view of the MERN [Redacted] and shared with other ministries was that the rejection of the GNLQ Project set a problematic precedent with regard to future projects.
2. The view of the MERN and other ministries was that the GNLQ Project had been treated differently from other projects in like circumstances.

369 To conclude, the contemporaneous evidence, direct or inferred, shows that that the decision made by the Québec Government in the Decree was unfounded. It relied on wrongful, speculative grounds which were, and remain, unprecedented grounds for rejection and targeted only the GNLQ Project.

2.6 The multiple irregularities in the federal EA process of the GNLQ Project culminated in an illegal decision by the Canadian Government

370 In the Memorial, the Claimant explained that Canada illegally prejudged the outcome of the federal EA process by announcing, before the Agency had completed its assessment, that it would not authorise the GNLQ Project.⁵²⁵ As also explained in the Memorial, in rejecting the GNLQ Project, the Federal Government relied on grounds set out in the Agency Report that were outside the Agency's jurisdiction and therefore could not serve as lawful bases for that decision.⁵²⁶

⁵²⁴ List of documents responsive to Request No. 12 that the Respondent has refused to produce, at Exhibit C-0535. ↩

⁵²⁵ Memorial, p. 105 (para. 321); Northey I, at Exhibit CER-2, p. 15 et seq. (paras. 43, 47). ↩

⁵²⁶ Memorial, p. 102 et seq. (paras. 312-340). ↩

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371 The Claimant addresses the Respondent's arguments as to these two issues below in Sections 2.6.1 and 2.6.2 respectively, none of which rebut the Claimant's position.

2.6.1 Following the Québec Government's decision, Canada illegally prejudged the outcome of the federal EA

372 Less than two months after the Québec Government's Decree, and while the federal EA process was ongoing, the Federal Government revealed that it had already decided to reject the GNLQ Project. Specifically, a journalist, quoting verbatim a spokesperson for the Liberal Party of Canada, announced the following on (then) Twitter: ““Le Parti libéral du Canada est d'accord avec le gouvernement du Québec et n'appuie pas ce projet. Il est clair pour nous qu'il ne verra pas le jour', confirme un porte-parole."⁵²⁷

373 This statement was relayed the next day in the Québec press.⁵²⁸ As Mr Northey explained in his first report, such a statement on the outcome of an EA prior to the completion of the statutory process constitutes an illegal prejudgment under Canadian law.⁵²⁹

374 In its Counter-Memorial, Canada argues that the statement did not reflect a prejudgment of the outcome of the EA, but rather the fact that, irrespective of the outcome of the federal assessment, Québec's decision to reject the GNLQ Project effectively prevented it from “seeing the light of day" because approval at both provincial and federal levels was required.⁵³⁰ This argument is factually inaccurate and legally ill-founded.

375 First, the Respondent's position is contradicted by the facts and, to start with, the content of the “tweet" in question, which stated that “[l]e Parti

⁵²⁷ Memorial, p. 103 et seq. (paras. 316-320); A. Shields (journalist at Le Devoir), Tweet dated 14 September 2021, at Exhibit C-0036-ENG-FRA. ↩

⁵²⁸ Memorial, p. 104 (para. 317); “Mises à pied massives chez GNL Québec et Gazoduq", Le Devoir, 15 September 2021, at Exhibit C-0293-FRA; “O'Toole réitère son appui à GNL Québec et s'attaque aux bloquistes", La Presse, 15 September 2021 (accessed on 19 October 2023), at Exhibit C-0294-ENG-FRA. ↩

⁵²⁹ Memorial, p. 105 (para. 321); Northey I, at Exhibit CER-2, p. 15 et seq. (paras. 43, 47). ↩

⁵³⁰ Counter-Memorial, p. 209 (para. 542). ↩

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libéral du Canada est d'accord avec le Gouvernement du Québec [...]."⁵³¹ The spokesperson's statement therefore manifested a clear opinion against the GNLQ Project on the part of the Liberal Party itself (i.e., the incumbent party in Federal Government). Not only that but the same spokesperson specified that this reflected the views of the Prime Minister's team.⁵³² As such and because such a position had no possible legal basis at the time, it was a prejudgment of the outcome of the EA process.

376 Mr Hubbard, who was the President of the Agency at the time and filed a witness statement in support of the Counter-Memorial, admits that:

"It is unusual for a political party to express an opinion on the fate of a project that is undergoing an environmental assessment, especially when that political party is the one that forms the government.”⁵³³

377 Indeed, based on the relevant documents produced in document production, Mr Northey concludes in his second report that the federal Cabinet decided to refuse the GNLQ Project several months before the completion of the federal EA process, and notably before the publication of the Agency Report, which was necessary to determine whether or not the GNLQ Project was likely to cause unmitigable adverse environmental effects.⁵³⁴

378 As Mr Northey explains, there were still four prerequisite steps to be completed under the CEAA 2012 before the Federal Government could lawfully take the decision to refuse the GNLQ Project:

⁵³¹ A. Shields (journalist at Le Devoir), Tweet dated 14 September 2021, at Exhibit C-0036-ENG-FRA. ↩

⁵³² "O'Toole réitère son appui à GNL Québec et s'attaque aux bloquistes", La Presse, 15 September 2021 (accessed on 19 October 2023), at Exhibit C-0294, p. 2 ("[L]'équipe de Justin Trudeau 'est d'accord avec le gouvernement du Québec et n'appuie pas ce projet '") (emphasis added). ↩

⁵³³ Witness Statement of Terrence Hubbard dated 11 July 2024, at Exhibit RWS-7, p. 5 (para. 17). ↩

⁵³⁴ Northey II, at Exhibit CER-2 (Second), p. 31 et seq. (paras. 73-78). ↩

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• a report by the Agency identifying significant adverse environmental effects, which must be provided to the Minister under section 25(2);
• a ministerial decision that these significant effects were not mitigable under section 52(1);
• the Minister referring these significant effects to Cabinet under section 52(2); and
• The Cabinet deciding under section 52(4) that there was no justification for the immitigable significant adverse effects referred to it by the Minister.⁵³⁵

379 In short, without the Agency Report, there was no basis for a negative decision.⁵³⁶

380 That the Federal Government prejudged the outcome of the federal EA process, if not planned to ignore it altogether, also transpires from a DFO email dated 24 September 2021, i.e., a few days after the Liberal Party spokesperson's statement was reported on Twitter and, importantly, after the Liberal Party won the federal elections on 20 September 2021, therefore remaining in power. In that email, the DFO's Ms Corriveau summarised for her colleagues a meeting she had had with the Agency's Johannie Martin.⁵³⁷ She described the next steps in the GNLQ Project EA and notably the preparation of potential conditions to be added in case the GNLQ Project were to be accepted by the Canadian Government.⁵³⁸ Importantly, she added that, according to Ms Martin, “Trudeau [Canada's then Prime Minister] aurait indiqué en élection de vouloir refuser le présent projet, alors il est probable que nous ne nous rendions jamais aux conditions provisoires.”⁵³⁹

381 In other words, not only had the Federal Government, and specifically the Prime Minister, already decided to reject the GNLQ Project, and thus

⁵³⁵ Northey II, at Exhibit CER-2 (Second), p. 32 et seq. (paras. 75-77). ↩

⁵³⁶ Northey II, at Exhibit CER-2 (Second), p. 33 et seq. (para. 78). ↩

⁵³⁷ Internal DFO email dated 24 September 2021, at Exhibit TLV-0156-FRA. ↩

⁵³⁸ Internal DFO email dated 24 September 2021, at Exhibit TLV-0156-FRA, p. 1. ↩

⁵³⁹ Internal DFO email dated 24 September 2021, at Exhibit TLV-0156-FRA, p. 1 (emphasis added). ↩

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prejudged the outcome of the EA, but the Agency, in charge of conducting that assessment, already knew that the GNLQ Project would be rejected and was influenced by that in finalising its report.⁵⁴⁰

382 Mr Le Verger explains, based on his contemporaneous meeting notes, how the Agency's tone changed after Québec's Decree. He provides an account of two meetings he had with the then President of the Agency, Mr Hubbard, on 14 July (before the Decree) and on 26 August 2021 (after the Decree). During the 14 July 2021 meeting, Mr Hubbard appeared reassuring, indicating that the Agency's draft report would be issued shortly and that the only issue was the DFO's concern with the beluga whales, but noting that this was not something that GNLQ needed to worry about.⁵⁴¹ However, during the 26 August 2021 meeting, Mr Hubbard appeared concerned about the impact of Canada's general elections on the Federal Government's decision.⁵⁴²

383 Mr Le Verger's account of these meetings corroborates the Claimant's case that the Federal Government's prejudgment of the outcome of the federal EA was motivated by a desire to defer to the Québec Government's decision, likely for electoral motives. This also transpires from the Agency's recommendation to the federal Minister of Environment, which emphasises the Québec Government's Decree as part of the "[a]utres considerations" that should be taken into account by the Minister of Environment in its decision on whether to refer the matter to the federal Cabinet, and adds the Québec Government decree as an annex to its recommendations.⁵⁴³

⁵⁴⁰ Northey II, at Exhibit CER-2 (Second), p. 32 (para. 74). ↩

⁵⁴¹ Le Verger II, at Exhibit CWS-3 (Second), p. 54 (para. 169). See also Notes of meetings with the Agency from 14 July 2021 to 23 September 2022, at Exhibit TLV-0154-ENG, p. 1. ↩

⁵⁴² Le Verger II, at Exhibit CWS-3 (Second), p. 54 (para. 169). See also Notes of meetings with the Agency from 14 July 2021 to 23 September 2022, at Exhibit TLV-0154-ENG, p. 2. ↩

⁵⁴³ L'évaluation environnementale au Québec méridional, at Exhibit RBE-0003-FRA, p. 5 ("Le projet a été soumis à la procédure d'évaluation et d'examen des impacts sur l'environnement par le gouvernement du Québec en vertu de la Loi sur la qualité de l'environnement. Le 21 juillet 2021, le Québec a annoncé qu'il refusait le projet, une décision officialisée par un décret publié le 11 août 2021 (Annexe IV). Malgré la décision du gouvernement du Québec, le promoteur a indiqué son intention de poursuivre l'ÉE fédérale. Le ↩

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Second, the Respondent's argument that the Québec Government's rejection of the GNLQ Project effectively prevented it from being approved by the Federal Government is wrong as a matter of law.

385 As Mr Northey explains, under the constitutional doctrine of paramountcy under Canadian law, "the existence of a prior no by Quebec was not sufficient to settle the outcome of the Port Terminal.”⁵⁴⁴ Thus, he adds, “a federal yes could have overcome this provincial no.”⁵⁴⁵

386 Finally, the Respondent has identified, but refused to produce, despite the Tribunal's order to do so, four documents in response to the Claimant's request for documents regarding the referral by the federal Minister of Environment and Climate Change to the Federal Government, dated between November 2021 and February 2022.⁵⁴⁶ Those four documents, listed in the Respondent's second privilege log, represent exchanges between the Minister of Environment and “fonctionnaires, bureau du conseil privé" and/or members of the federal Cabinet and have an “estimated" date of “December 2021". Instead of providing the description of those documents, in the privilege log, the Respondent marked in each case "section intentionnellement laissée en blanc".⁵⁴⁷

387 In the same vein, the Respondent has not produced any documents responsive to the Claimant's request for documents recording the federal Cabinet's deliberations leading to the Decision Statement and dated between November 2021 and February 2022. It has identified but refused to produce two documents responsive to this request, despite the Tribunal's order that it should do so.⁵⁴⁸ These are documents exchanged with the federal cabinet and the Conseil du Trésor but where, once again, in its

promoteur est toujours tenu d'obtenir toutes les approbations et tous les permis fédéraux et provinciaux nécessaires à la réalisation du projet avant d'aller de l'avant.").

⁵⁴⁴ Northey II, at Exhibit CER-2 (Second), p. 34 et seq. (para. 80). ↩

⁵⁴⁵ Northey II, at Exhibit CER-2 (Second), p. 34 et seq. (para. 80). ↩

⁵⁴⁶ See PO4, Annex A, p. 69 (Request 17); List of documents responsive to Request No. 17 that the Respondent has refused to produce, at Exhibit C-0536-ENG-FRA. ↩

⁵⁴⁷ See List of documents responsive to Request No. 17 that the Respondent has refused to produce, at Exhibit C-0536-ENG-FRA. See also PO11, Annex A. ↩

⁵⁴⁸ See PO4, Annex A, p. 72 et seq. (Request 18); List of documents responsive to Request No. 18 that the Respondent has refused to produce, at Exhibit C-0537-ENG-FRA. ↩

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privilege log, the Respondent has deliberately left the subject matter blank.⁵⁴⁹

388 If these documents were reflective of a lawful decision-making process, based on science and data and free from improper political interference, the Respondent would have produced them, whether voluntarily or on the Tribunal's order.

389 The Tribunal should therefore draw the following adverse inference from the Respondent's refusal to produce these documents: Prior to its 7 February 2022 Decision Statement, the Federal Government had already decided to reject the GNLQ Project and follow the Québec Government's own decision, regardless of the outcome of the federal EA process for the GNLQ Project.

2.6.2 The Federal Government rejected the GNLQ Project on predetermined and unsubstantiated grounds outside the scope of the EIS Guidelines

390 On 9 December 2021, the federal Minister of Environment decided that, having considered the proposed mitigation measures, the project was likely to cause significant adverse environmental effects.⁵⁵⁰ On 7 February 2022, the Federal Government decided to reject the GNLQ Project.

391 The Respondent has refused to produce a number of documents relating to the decision of the federal Minister of Environment, despite being ordered by the Tribunal to do so.⁵⁵¹ However, the actual decision of the Federal Government to reject the GNLQ Project relied on three grounds, namely the significant adverse environmental effects of the project on:

• the "increase in the pollutant greenhouse gas emissions";
• "the St. Lawrence beluga whale”

⁵⁴⁹ PO11, Annex A. ↩

⁵⁵⁰ Note de service au ministre: Projet Énergie Saguenay – Décision sur l'importance des effets et renvoi possible au gouverneur en conseil dated 9 December 2021, at Exhibit TH-0003-FRA. ↩

⁵⁵¹ List of documents responsive to Request No. 17 that the Respondent has refused to produce, at Exhibit C-0536-ENG-FRA. ↩

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• "the cultural heritage of the Innu First Nations”.⁵⁵²

This is not disputed.⁵⁵³ Nor can it be disputed that these grounds resemble those invoked by the Québec Government to reject the Project on 21 July 2021.

392 In the Memorial, the Claimant demonstrated that all three grounds were outside the Agency's jurisdiction as defined by the EIS Guidelines,⁵⁵⁴ and were in any event unsubstantiated.⁵⁵⁵ Nothing in the Counter-Memorial changes this position, as explained below in Sections 2.6.2.1 and 2.6.2.2.

2.6.2.1 All the grounds on which the Federal Government relied to reject the GNLQ Project were outside the scope of the EIS Guidelines

(i) Upstream GHG emissions of the Project

393 In the Memorial, the Claimant, supported by Mr Northey's expert testimony, has shown that the Agency's consideration of upstream GHG emissions was inconsistent with the CEAA 2012, given that the EIS Guidelines specifically excluded upstream GHG emissions from the EA of the GNLQ Project.⁵⁵⁶

394 The Agency was fully aware of this because its draft Report of September 2021 included statements recalling this exclusion and the fact that GHG emissions would not be considered as part of the federal Minister of Environment's decision.⁵⁵⁷ Not only did these statements disappear from the final version of the Report, but the Agency actively engaged in an analysis of upstream GHG emissions in the final Agency Report, on which

⁵⁵² Impact Assessment Agency of Canada, Environmental Assessment Decision Statement dated 7 February 2022, at Exhibit JM-0053-ENG; Agency, Press Release "Government of Canada Releases the Final Decision on the Energie Saguenay Project", 7 February 2022, at Exhibit C-0295-ENG. ↩

⁵⁵³ Counter-Memorial, p. 63 (para. 171). ↩

⁵⁵⁴ Memorial, p. 105 et seq. (para. 324), p. 107 (para. 329), p. 109 (para. 335). ↩

⁵⁵⁵ Memorial, p. 105 et seq. (para. 323), p. 107 et seq. (paras. 330-332, 333-335). ↩

⁵⁵⁶ Memorial, p. 105 et seq. (para. 324); Northey I, at Exhibit CER-2, p. 42 (para. 120). ↩

⁵⁵⁷ Agency, Draft Environmental Assessment Report (September 2021), at Exhibit C-0296-ENG, p. 37; see also Memorial, p. 106 (para. 325). ↩

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the Federal Government relied to find that the GNLQ Project had adverse effects on GHG emissions and to reject it.⁵⁵⁸

395 In its Counter-Memorial, the Respondent contends that the Agency was entitled to request information about upstream GHG emissions, and that it did not draw any conclusions from anticipated upstream GHG emissions taken in isolation, but only as part of the cumulative effects of the GNLQ Project on GHG emissions.⁵⁵⁹

396 As explained above, this contention does not sit well with the clear exclusion of upstream GHG emissions from the scope of the EIS Guidelines. The EIS Guidelines do not provide for any exception to that exclusion that would permit upstream GHG emissions to be considered for the assessment of cumulative effects. The EIS Guidelines unambiguously state that the "production of upstream GHG emissions are not considered to be part of the Project for the purposes of the environmental assessment."⁵⁶⁰ Likewise the EIS Guidelines specify that:

"[T]he Minister will not make a decision under CEAA 2012 about whether [...] the production of upstream GHGs [...] are likely to cause significant adverse environmental effects.”⁵⁶¹

397 In other words, GHG emissions were squarely outside the limits of the federal EA. The Agency could ask about them but only for information purposes, which the EIS Guidelines define as follows: “for use by programs or activities within federal jurisdiction.”⁵⁶²

(ii) Impact on beluga whales

398 In its Memorial, the Claimant demonstrated that the exclusion, in the EIS Guidelines, of maritime shipping from the scope of the EA prevented the

⁵⁵⁸ Memorial, p. 106 (paras. 326-327); Agency Report, at Exhibit C-0037-ENG, p. 48 et seq. ↩

⁵⁵⁹ Counter-Memorial, p. 60 et seq. (paras. 163, 521). ↩

⁵⁶⁰ EIS Guidelines, at Exhibit C-0199-ENG, p. 4 (emphasis added). ↩

⁵⁶¹ EIS Guidelines, at Exhibit C-0199-ENG, p. 4 (emphasis added). ↩

⁵⁶² EIS Guidelines, at Exhibit C-0199-ENG, p. 4. ↩

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Agency, and ultimately the Federal Government, from lawfully considering the effect of the GNLQ Project on beluga whales.⁵⁶³

399 In its Counter-Memorial, the Respondent acknowledges that maritime shipping was excluded from the scope of the assessment by the EIS Guidelines.⁵⁶⁴ However, it contends that that exclusion was “reversed” in August 2019 when the Agency decided to amend the geographical scope of the GNLQ Project to include the impact of LNG tankers on the Saguenay River, on the ground that GNLQ allegedly had a “certain level of influence" over the ships.⁵⁶⁵ This argument is wrong on three levels.

400 First, given that the exclusion of maritime navigation from the scope of the EA at the outset resulted from a deliberate choice by the Agency (after the DFO had specifically asked that it be included),⁵⁶⁶ a reversal of the Agency's approach would have been clear and open – and certainly not done obliquely. However, the letter from the Agency to GNLQ dated 20 August 2019 did not mention any amendment of the EIS Guidelines, let alone contain any language revoking the exclusion of maritime shipping from the scope of the EA as set out in the EIS Guidelines.⁵⁶⁷

401 The letter mentioned: “l’Agence a procédé à une révision de la portée géographique de la navigation à considérer dans le cadre de l'évaluation

⁵⁶³ Memorial, p. 107 (para. 329). ↩

⁵⁶⁴ Counter-Memorial, p. 56 et seq. (para. 152). ↩

⁵⁶⁵ Counter-Memorial, p. 57 (para. 153). ↩

⁵⁶⁶ See ECCC Comments on draft EIS Guidelines, at Exhibit CC-0008-FRA, p. 47 of the PDF (showing ECCC's comments on the draft EIS Guidelines, suggesting, in particular, to extend the geographical scope of the assessment to the Saguenay-St. Lawrence Maritime Park); and Email from the DFO to the Agency, at Exhibit ST-0009-FRA, p. 12 and 46 of the PDF (where the DFO comments on the scope of assessment of navigation, stating that it will assess effects on the beluga whale habitat as a whole). See also Email from the DFO to the Agency, at Exhibit ST-0009-FRA, p. 1 of the PDF (in which the DFO notes that it had sought to extend the scope of assessment for the North Shore Terminal project, and that the Agency had replied that it was not possible to impose conditions for activities outside of a promoter's control. Despite agreeing to produce documents responsive to DPR 13 in the document production process in this arbitration, the Respondent has failed to produce the Agency's answer to the DFO's email). The Agency rejected both the ECCC's and the DFO's suggestions in the EIS Guidelines. EIS Guidelines, at Exhibit C-0199-ENG, p. 41 of the PDF. ↩

⁵⁶⁷ Letter from the Agency to GNLQ, at Exhibit GB-0025-FRA. ↩

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environnementale en cours du Projet.”⁵⁶⁸ However, it also indicated that the purpose of this extension was to “définir la façon appropriée de determiner quelles activités liées à un projet, comme la navigation maritime, doivent être incluses dans la portée de l'évaluation environnementale en vertu de la [CEAA 2012].”⁵⁶⁹

402 In other words, according to the Agency, the extension of the EA geographical scope was merely an experiment to better define the scope of future projects under the CEAA 2012.

403 Mr Northey, in his second report, confirms that he finds “no basis in this letter to conclude that this letter amended and overturned the express exclusion in the EIS Guidelines regarding the Environmental Assessment Decision".⁵⁷⁰ All Mr Northey gleans from the letter is an indication that the Agency intends to gather information regarding maritime shipping in the Saguenay River, which is explicitly authorised by section 3.2.1 of the EIS Guidelines.⁵⁷¹ However, nothing in the letter suggests that the EIS Guidelines would be modified to include maritime shipping as part of the matters on which the Minister would decide on the significance of environmental effects.⁵⁷²

404 Second, even assuming that the intended purpose of the letter had been to amend the scope of the EA (which it clearly was not), the basis on which the Agency should have purported to do so, namely GNLQ's alleged “pouvoir d'influence” over LNG tankers, would have been misconceived.

405 As Mr Bainbridge explains in his second witness statement, “the control over the vessels would have remained at all times with their shipmaster, who would only have answered to the shipping company, not GNLQ.”⁵⁷³ Furthermore, Mr Bainbridge explains that the shipmaster would have had

⁵⁶⁸ Letter from the Agency to GNLQ, at Exhibit GB-0025-FRA, p. 1. ↩

⁵⁶⁹ Letter from the Agency to GNLQ, at Exhibit GB-0025-FRA, p. 1. ↩

⁵⁷⁰ Northey II, at Exhibit CER-2 (Second), p. 57 et seq. (para. 149) (emphasis in original). ↩

⁵⁷¹ Northey II, at Exhibit CER-2 (Second), p. 58 (para. 151). ↩

⁵⁷² Northey II, at Exhibit CER-2 (Second), p. 58 et seq. (paras. 152-153). ↩

⁵⁷³ Bainbridge II, at Exhibit CWS-4 (Second), p. 4 (para. 10). ↩

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to relinquish control of the vessel to pilots of the Corporation of Lower St-Lawrence Pilots when entering the Saguenay River.⁵⁷⁴

406 The Agency itself acknowledged, in a document prepared in the context of the assessment of the North Shore Terminal project, that the recourse to pilots means surrendering control over a ship in a given area, with the consequences that the area concerned could not be subject to conditions for the project proponent to apply under the CEAA 2012 (but information obtained during the EA could be transmitted to federal authorities for them to take specific measures):

“Les stations de pilotage représentent donc une limite géographique à partir de laquelle il y a un certain niveau de contrôle et où des mesures peuvent être exigées par une autorité fédérale. La navigation dans cette zone ne fait donc pas l'objet de conditions LCÉE pouvant être mises en œuvre par le promoteur, mais l'information recueillie durant l'évaluation environnementale peut être transférée aux autorités fédérales ayant un contrôle sur la navigation afin que des mesures soient prises par ces autorités.”⁵⁷⁵

407 The Respondent's document production revealed that Ms Bélanger, who participated in the Agency's assessment of the GNLQ Project and testifies for the Respondent in this arbitration, confirmed the same point in an email dated 12 June 2015, in the context of the North Shore Terminal project:

“Nous ne pouvons inclure dans la portée de l'ÉE la navigation à l'extérieur de la zone où le promoteur a une certaine influence puisque les navires ne seront pas sous son contrôle, il nous est donc

⁵⁷⁴ Bainbridge II, at Exhibit CWS-4 (Second), p. 4 (paras. 10-11). (“Furthermore, foreign ships of more than 35 meters sailing in the Saguenay River (starting from the station of Les Escoumins, on the St Lawrence River and near the confluence with the Saguenay River) must be sailed by pilots of the Corporation of Lower St-Lawrence Pilots [...]. Thus, between Les Escoumins and Grande Anse where the GNLQ loading facility would have been (a roughly 150-kilometre distance), the ships chartered by GNLQ would have been under the control of the shipmaster, with the mandatory assistance of the CLSLP pilots"). On the mandatory piloting on the Saguenay River, see also EIS (Annexes, Volume 4), at Exhibit C-0202-FRA, p. 540 of the PDF. ↩

⁵⁷⁵ Scope of the EA for the North Shore Terminal project dated 15 May 2015, at Exhibit C-0538-FRA, p. 5. ↩

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impossible de lui imposer des conditions en lien avec la navigation à l'extérieur de sa zone de juridiction. [...] La navigation est une activité accessoire au projet, mais qui n'est pas réalisée par le promoteur et qui est ‘mobile' [...],"⁵⁷⁶

408 Like the proponent of the North Shore Terminal project, GNLQ would have had no control over the LNG tankers that would have transited through the Saguenay River. The Agency's reference in its 20 August 2019 letter to GNLQ having “pouvoir d'influence” over LNG tankers was thus unfounded and could not have provided a proper basis to modify the scope of the EA.

409 In addition, as Mr Northey notes in his second report, the reference in that same letter to an alleged “augmentation importante” in navigation on the Saguenay River that “est susceptible de causer des effets potentiels importants"⁵⁷⁷ contradicts the Agency's own opinion, as set out in its 2018 report on the North Shore Terminal project, that the cumulative increase in ship traffic in the Saguenay (which included shipping generated by the GNLQ Project) would not have significant effects.⁵⁷⁸

410 Finally, as Mr Northey notes, the documents produced by the Respondent in document production show that, six months before its 20 August 2019 letter, the Agency had in fact decided (improperly and unbeknownst to GNLQ) to include maritime shipping in its assessment, in complete contradiction with the EIS Guidelines.⁵⁷⁹ Therefore, contrary to the Respondent's position in its Counter-Memorial, on no interpretation could the 20 August 2019 letter constitute a decision to expand the scope of the EA: that decision had already been taken but not communicated to GNLQ. At most, the Agency's August 2019 letter was thus a mere indication (albeit certainly not a clear one) that the Agency had already made this irregular decision.

⁵⁷⁶ Email correspondence between G. Belanger (Agency) and P. Beaufils (Parks Canada) from 11 to 12 June 2015, at Exhibit C-0539-FRA, p. 1. ↩

⁵⁷⁷ Letter from the Agency to GNLQ, at Exhibit GB-0025-FRA, p. 2. ↩

⁵⁷⁸ Northey II, at Exhibit CER-2 (Second), p. 60 et seq. (para. 157). See also Section 4.2.2.3(iii) below. ↩

⁵⁷⁹ Northey II, at Exhibit CER-2 (Second), p. 59 et seq. (paras. 154-156). ↩

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This confirms that the Respondent's contention that the Agency amended the EIS Guidelines in relation to maritime navigation is absurd. In the six instances identified by Mr Northey where the Agency amended its guidelines, the amending document was communicated to the proponent, made available on the Agency's public record and “expressly called an amendment to the EIS Guidelines.”⁵⁸⁰ An internal email, never communicated to the proponent, or made public, cannot constitute a lawful amendment of the EIS Guidelines.

(iii) Impact on Innu First Nations' cultural heritage

412 In the Memorial, the Claimant showed that the Agency's conclusion on the alleged lack of social acceptability of the GNLQ Project derived from indirect effects of increased maritime shipping on beluga whales and, in turn, on the cultural heritage of the Innu First Nations.⁵⁸¹ In other words, the Agency's conclusion on the Innu First Nations turned on its findings on the impact of the GNLQ Project on beluga whales, which, as explained above, was outside the scope of its EA, as defined by the EIS Guidelines, and thus unlawful.⁵⁸²

413 In the Counter-Memorial, the Respondent admits that the Agency's conclusions regarding the First Nations' cultural heritage derived from its finding relating to the impact of the Project on beluga whales.⁵⁸³ It does not dispute either that, to the extent that it derived from a finding that was impermissible under the CEAA 2012 and the EIS Guidelines, the Agency's finding regarding the First Nations' cultural heritage was also impermissible.

414 In conclusion, all the grounds set out in the Agency's Report and relied on by the Federal Government were outside the scope of the EA.

415 These grounds also contradicted the EIS Guidelines. Indeed, neither the Agency in its Report nor the Federal Government in its decision relied on

⁵⁸⁰ Northey II, at Exhibit CER-2 (Second), p. 38 (para. 89). ↩

⁵⁸¹ Memorial, p. 108 (para. 333). ↩

⁵⁸² Memorial, p. 109 (para. 335). ↩

⁵⁸³ Counter-Memorial, p. 62 (para. 168). ↩

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any potential environmental effects that did fall within the proper scope of the Agency's EA as per the EIS Guidelines. In the absence of any such effects that could not be mitigated, under Canadian law, the Minister of Environment had no choice but to approve the Project, instead of making a finding of significant adverse environmental effects and referring the GNLQ Project to the Cabinet. As explained by Mr Northey:

"[I]f the Minister had followed and not contradicted the 2016 EIS Guidelines, the Minister would have concluded that there were no significant adverse environmental effects. By the terms of CEAA, he would have then decided to approve the Port Terminal, and cabinet would have had no role in decision making”⁵⁸⁴

416 Furthermore, as explained below, the specific grounds on which the Federal Government did purport to rely were either unfounded or were environmental effects that could be mitigated, making the Minister of Environment's decision to refer the matter to the federal Cabinet even more incomprehensible.

2.6.2.2 All the grounds on which the Federal Government relied to reject the Project were unsubstantiated and/or concerned environmental effects that could be mitigated

417 As noted above, the Federal Government's decision to reject the GNLQ Project was based upon its alleged impact on (i) GHG emissions, (ii) beluga whales and (iii) the Innu First Nations' cultural heritage, and on the Agency's conclusion, in respect of each of these grounds, that the GNLQ Project had significant effects that could allegedly not be mitigated.

418 As explained by Mr Northey in his second report, under the CEAA 2012, the federal Minister of Environment can only refer a project to the federal Cabinet for a decision on whether “significant effects on the environment are "justified in the circumstances" if the Agency has identified unmitigable significant effects in the first place.⁵⁸⁵ In the absence of such

⁵⁸⁴ Northey II, at Exhibit CER-2 (Second), p. 12 (para. 26) (emphasis in original). ↩

⁵⁸⁵ Northey II, at Exhibit CER-2 (Second), p. 9 et seq. (para. 18). ↩

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a finding by the Agency, the Minister of Environment cannot refer a project to the federal Cabinet, and instead must approve it.⁵⁸⁶

419 For instance, the federal Minister of Environment approved the controversial Bay du Nord project without referring it to the federal Cabinet, after the Agency's EA report concluded that the project was not likely to cause significant adverse environmental effects.⁵⁸⁷ This was so even if, in that case, the Minister's decision contained a series of GHG-related conditions and mitigation measures, including that the proponent of the project, Equinor, include GHG emissions reduction measures in the design of the project and become carbon neutral by 2050.⁵⁸⁸

420 As explained below, in the case of the GNLQ Project, none of the Agency's findings of "unmitigable significant effect" were justified, such that the project should have been approved without being submitted to the federal Cabinet.

(i) The Agency's evaluation of GHG emissions was flawed

421 In the Memorial, the Claimant explained that the Agency's conclusion in its Report that the GNLQ Project would result in significant adverse transboundary environmental effects that would contradict Canada's and Québec's climate change objectives was erroneous, and indeed contradictory to the views of the MELCC's own experts that the GNLQ Project was compatible with Québec's GHG reduction objectives.⁵⁸⁹

422 In the Counter-Memorial, the Respondent alleges that the Agency relied on the views of federal experts,⁵⁹⁰ and seeks to explain (unconvincingly)

⁵⁸⁶ Northey II, at Exhibit CER-2 (Second), p. 9 et seq. (para. 18). ↩

⁵⁸⁷ Agency, Environmental Assessment Report for Bay du Nord (December 2021), at Exhibit C-0365-ENG, p. iv; Minister of Environment and Climate Change Canada, Decision Statement Issued under Section 54 of the Canadian Environmental Assessment Act, 2012 for the Bay du Nord Development Project dated 6 April 2022, at Exhibit C-0364-ENG. ↩

⁵⁸⁸ Minister of Environment and Climate Change Canada, Decision Statement Issued under Section 54 of the Canadian Environmental Assessment Act, 2012 for the Bay du Nord Development Project dated 6 April 2022, at Exhibit C-0364-ENG, p. 17 et seq. (paras. 6.1-6.5). ↩

⁵⁸⁹ Memorial, p. 105 (para. 323). ↩

⁵⁹⁰ Counter-Memorial, p. 59 et seq. (para. 161). ↩

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why it disregarded GNLQ's plan to achieve carbon neutrality and ignored the potential of the LNG produced by the GNLQ Project to replace more polluting fuels such as coal and fuel oil.⁵⁹¹ In doing so, the Respondent glosses over material deficiencies in the Agency's analysis.

423 First, the Respondent's attempt to absolve the Agency for dismissing GNLQ's carbon neutrality commitment is disingenuous.

424 GNLQ's commitment had a huge significance in the context of the Agency's analysis, as it should have effectively put to rest any concern Canada or Québec may have had in relation to direct GHG emissions in Canada: if GNLQ committed to suppress or offset the GHG emissions arising from the operation of the plant, the ones under GNLQ's responsibility and control, and became carbon neutral, the GNLQ Project would have had a much more limited impact on Canada's and Québec's GHG emissions, which were under GNLQ's responsibility and control.

425 In its Report, the Agency

• acknowledged that GNLQ had made such a commitment, which would have been effective as of the first year of operations (although GNLQ had also committed to ensuring that the construction phase would also be carbon neutral);⁵⁹²
• accepted that experts of Environment and Climate Change Canada ("ECCC") considered this plan credible, subject to implementing four recommendations;⁵⁹³ and

⁵⁹¹ Counter-Memorial, p. 60 (para. 162). ↩

⁵⁹² Agency Report, at Exhibit C-0037-ENG, p. 45 ("The Proponent has also committed to implementing a carbon neutrality program at the time of the plant's operation [...]. The Proponent indicates that this plan would apply to emissions accounted for and reported under the Regulation respecting mandatory reporting of certain emissions of contaminants into the atmosphere, effective from the first year of operation, and thus only to the emissions linked to the liquefaction process, which is equivalent to approximately 88% of the Project's emissions."). ↩

⁵⁹³ Agency Report, at Exhibit C-0037-ENG, p. 45 et seq. These recommendations were (i) extending it to upstream emissions (as opposed to only production, which still corresponded to 88% of the Project's total GHG emissions); (ii) taking into account a possible rise in the price of carbon offset credit proposals; (iii) ensuring compliance with the internationally transferred ↩

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• acknowledged that, although a new regulation of July 2020 required proponents to “provide a credible plan to describe how projects with a life beyond 2050 will achieve net zero emissions by that time", the assessment of the GNLQ Project was under the CEAA 2012 regime, which did not impose such a requirement.⁵⁹⁴

426 Yet, in the same section of its Report, the Agency decided to ignore GNLQ's - much stronger – commitment to achieve carbon neutrality from the construction stage, because its plan to do so was allegedly not credible, despite the recommendations identified by ECCC.⁵⁹⁵ The Agency did not explain why GNLQ would have been unable to implement these recommendations, and why it could not have instead imposed those as conditions.

427 In the arbitration, the Claimant requested that the Respondent produce the documents reflecting the ECCC's or the Agency's analysis leading to this conclusion.⁵⁹⁶ The Respondent agreed to do so, but did not have any responsive document to produce. This confirms that no such documents exist, and that the Agency's decision with respect to GNLQ's carbon neutrality plan was not based on anything tangible, let alone a proper analysis.

428 By dismissing the impact of GNLQ's voluntary carbon neutrality plan on the GHG emissions of its project for lack of credibility, the Agency effectively held the GNLQ Project to a higher standard than the projects evaluated post-July 2020, which only had to commit to reach carbon neutrality by 2050.

429 Had the Agency not improperly dismissed GNLQ's carbon neutrality commitment, it would not have been in a position to make a finding of "significant effects" on the environment in relation to GHG emissions, or at least not a finding of unmitigable "significant effects".

mitigation outcome rules set by Article 6 of the Paris Agreement; and (iv) implementing an audit process to validate the achievement of its carbon neutrality target.

⁵⁹⁴ Agency Report, at Exhibit C-0037-ENG, p. 48 (emphasis added). ↩

⁵⁹⁵ Agency Report, at Exhibit C-0037-ENG, p. 48. ↩

⁵⁹⁶ See PO4, Annex A, p. 66 et seq. (Request No. 16). ↩

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430 Second, in relation to the capacity of the GNLQ Project to sell LNG that would displace more polluting fuels, the Agency Report suffers from the same deficiencies as the MELCC Report. This is hardly surprising: in the chapter dedicated to GHG emissions alone, the Agency Report contains no less than five quotes from the MELCC Report.⁵⁹⁷

431 As explained above in Section 2.5.4.3(i), the MELCC took a purely speculative approach to assume that GNLQ would not contribute to worldwide GHG emissions reductions and brushed aside the fact that it would have been impossible for GNLQ to have proved the contrary with certainty.

432 Third, besides being unlawful under Canadian law from a procedural perspective, the Agency's inclusion of upstream GHG emissions in its analysis was substantively flawed. Indeed, the Agency's conclusion that “the [GNLQ] Project would result in significant adverse direct and cumulative transboundary environmental effects" was based on its assessment that the GNLQ Project would generate upstream GHG emissions amounting to “about 7,155 kilotonnes of CO2 equivalent per year".⁵⁹⁸ However, in addition to being expressly barred from consideration to determine significant adverse effects under the EIS Guidelines, this figure is grossly inflated and does not reflect reality.

433 In its Report, the Agency admits at the outset that this figure is not reflective of the actual GHG emissions that would be generated by the GNLQ Project, because it includes “preliminary work, exploration, extraction, treatment and closure of the natural gas extraction site", i.e., work done years before the GNLQ Project itself, or to be done years after the completion of the GNLQ Project, and wholly outside GNLQ's control.⁵⁹⁹ For this reason alone, the Agency's statement that the Project “would be responsible for about 7,155 kilotonnes of CO2 equivalent per year" constituted a gross misrepresentation.⁶⁰⁰

⁵⁹⁷ Agency Report, at Exhibit C-0037-ENG, p. 41 and 47. ↩

⁵⁹⁸ Agency Report, at Exhibit C-0037-ENG, p. 41. ↩

⁵⁹⁹ Agency Report, at Exhibit C-0037-ENG, p. 41. ↩

⁶⁰⁰ Agency Report, at Exhibit C-0037-ENG, p. 41. ↩

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434 In addition, as explained by Mr Le Verger in his second witness statement, this figure was taken by ECCC from the life cycle study commissioned by GNLQ from the International Reference Centre for Life Cycle Assessment and Sustainable Transition (“CIRAIG”), without any proper analysis of whether it was relevant for the purpose of the assessment of the GNLQ Project.⁶⁰¹ ECCC and the Agency were wrong to rely on this figure because it included "scope 2 and 3 emissions" (i.e., GHG emissions not directly caused by the GNLQ Project).⁶⁰² Mr Le Verger shows that, had ECCC applied its own methodology based on the underlying data provided by GNLQ, the overall emissions would have been around 5,300 kilotonnes of CO2 equivalent per year instead of 7,155, i.e., a difference of more than 25%.⁶⁰³

435 Mr Le Verger further explains that, even relying on this 5,300 kilotonnes of CO2 equivalent per year would have been inadequate, because it would assume that the needs of the GNLQ Project (and the corresponding GHG emissions) would have resulted in a commensurate increase in production of natural gas in Canada (around 1.6 billion cubic feed per day).⁶⁰⁴ However, as a Wood Mackenzie study provided by GNLQ to the Agency and ECCC showed, upon commencement of operations of the Project, the incremental increase of Canada's natural gas production would have only been 0.08 billion cubic feet per day on average, indicating that even the lower, 5,300 kilotonnes figure is a significant overestimate of the actual upstream GHG emissions of the GNLQ Project.⁶⁰⁵ As Mr Le Verger explains, GNLQ estimated that the actual incremental increase in GHG emissions deriving from the GNLQ Project would have been 544 kT/year at the beginning of operations, and could have decreased down to 346 kT/year from 2046 – figures that ECCC concluded were plausible – as a result of regulatory and technological changes, notably aimed at reducing flaring and fugitive GHG emissions.⁶⁰⁶

⁶⁰¹ Le Verger II, at Exhibit CWS-3 (Second), p. 56 (para. 176). ↩

⁶⁰² Le Verger II, at Exhibit CWS-3 (Second), p. 55 (para. 174). ↩

⁶⁰³ Le Verger II, at Exhibit CWS-3 (Second), p. 56 (para. 177). ↩

⁶⁰⁴ Le Verger II, at Exhibit CWS-3 (Second), p. 56 et seq. (para. 178). ↩

⁶⁰⁵ Le Verger II, at Exhibit CWS-3 (Second), p. 57 (para. 180). ↩

⁶⁰⁶ Le Verger II, at Exhibit CWS-3 (Second), p. 58 (para. 181). ↩

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436 While, on 22 October 2021, GNLQ alerted the Agency to these glaring methodological issues in its analysis, the Agency failed to take them into account in its final Report.⁶⁰⁷

437 The use by the Agency of the grossly inflated figure of 7,155 kilotonnes of CO2 equivalent per year in its Report was both incomprehensible and obviously highly prejudicial to GNLQ. In circumstances where both the ECCC and the Agency acknowledged this was an overestimate of GNLQ's actual GHG emissions, it was unjustified and improper.

(ii) The Agency's assessment of the effects of the GNLQ Project on beluga whales was speculative and unfounded

438 In the Memorial, the Claimant explained that the conclusions in the Agency Report on the impact of the GNLQ Project on beluga whales relied on the same inconclusive scientific studies as the MELCC Report. They went as far as questioning the choice of the GNLQ Project site location, almost a decade after it was made by GNLQ and six years after it was communicated to the Agency in the Avis de projet (the Project Description under the federal process).⁶⁰⁸

439 In the Counter-Memorial, the Respondent reiterates the Agency's conclusions, based on the DFO's opinion that the GNLQ Project would have had significant negative effects on beluga whales.⁶⁰⁹ In particular, the Respondent refers to:

1. the Agency/DFO's argument that the GNLQ Project would have increased maritime traffic in an otherwise relatively silent area, which, when viewed cumulatively with existing and potential future maritime traffic, would have threatened the beluga population;⁶¹⁰ and

⁶⁰⁷ Le Verger II, at Exhibit CWS-3 (Second), p. 57 et seq. (para. 182), GNLQ, Comments to the Agency dated 22 October 2021, at Exhibit C-0376-FRA, p. 9 et seq. ↩

⁶⁰⁸ Memorial, p. 107 et seq. (paras. 330-332). See also GNLQ, Avis de projet, at Exhibit C-0197-FRA, p. 1. ↩

⁶⁰⁹ Counter-Memorial, p. 60 et seq. (paras. 164 and 167). ↩

⁶¹⁰ Counter-Memorial, p. 61 (para. 164). ↩

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1. the effectiveness of the mitigation measures proposed by GNLQ which was allegedly not sufficiently proven.⁶¹¹

These conclusions could not serve as a basis for a valid refusal, for several reasons.

440 First, the Agency's finding in its Report, issued in November 2021, that the navigation associated with the GNLQ Project would cause significant environmental effects if combined with other “past, present or projected activities"⁶¹² is discriminatory, as it contradicts the Agency's and the DFO's prior conclusions when assessing that same issue in relation to other projects. The Agency's finding in 2021 was indeed at odds with its position in 2018, when assessing the North Shore Terminal project, that the increase of navigation on the Saguenay River that the GNLQ Project would have generated was acceptable.⁶¹³ The DFO had expressed the same view in September 2020,⁶¹⁴ and in February 2021.⁶¹⁵

441 The Agency had also recognised in September 2020 that there was no regional study assessing the impact of maritime traffic on marine mammals in the Saguenay-St. Laurent area.⁶¹⁶ At the time of its 2021 Report, the Agency did not provide any reason to justify its change of position and its decision to go against the DFO's conclusions. The Respondent's argument in the Counter-Memorial that the Agency relied on concerns expressed

⁶¹¹ Counter-Memorial, p. 60 (para. 162). ↩

⁶¹² Agency Report, at Exhibit C-0037-ENG, p. 70 (emphasis added). ↩

⁶¹³ See Le Verger II, at Exhibit CWS-3 (Second), p. 58 (para. 184); Le Verger I, at Exhibit CWS-3, p. 57 (paras. 231-234). See also Agency, Environmental Assessment Report for the North Shore Terminal project (October 2018), at Exhibit C-0215-ENG, p. 288 of the PDF and Northey I, at Exhibit CER-2, p. 29 et seq. (paras. 83-86). ↩

⁶¹⁴ See Document Preparatoire BAPE - Énergie Saguenay, at Exhibit C-0540-FRA, p. 679-681. See also Le Verger II, at Exhibit CWS-3 (Second), p. 58 (para. 184) and Information sheet from the federal authorities dated 10 December 2015, at Exhibit C-0541-FRA (DFO's initial opinion on the GNLQ Project, which only concerns the construction and operation phases within the Project's perimeter and does not refer to navigation.). ↩

⁶¹⁵ Agency, Report of meeting between Agency, TC, PC, DFO, MELCC and MFFP dated 3 February 2021, at Exhibit C-0542-FRA, p. 6 ("Les scientifiques du MPO ont indiqué que leur avis de 2018 sur les effets cumulatifs des projets de Terminal en rive nord du Saguenay et Énergie Saguenay est toujours valide."). ↩

⁶¹⁶ Email from J. Martin (IAAC) to S. Boudreau et al. dated 14 September 2020, at Exhibit C-0543-FRA. ↩

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during the public consultations is opportunistic and not supported by documentary evidence, let alone scientific evidence.⁶¹⁷

442 Furthermore, and similarly to the MELCC in its final report, the Agency based its reasoning on inconclusive scientific evidence. In this respect, the Respondent's argument that GNLQ was aware of the scientific studies relied on by the DFO, and allegedly showing that the decline in the beluga population had to do with the increase of subaquatic noise, is equally misleading.⁶¹⁸

443 As GNLQ explained to the Agency in January 2021, these studies did not establish a link between the decline in the beluga population and subaquatic noise, and no studies had confirmed that noise elimination would support the recovery of the population.⁶¹⁹ In November 2021, the DFO itself had to admit that “current knowledge is insufficient to determine what levels of noise and vessel traffic may elicit a behavioural response in beluga whales and what effects such a response has on their ability to carry out their life functions”.⁶²⁰ As Mr Northey opines, the Agency had no scientific basis to consider that the impact of the GNLQ Project on beluga whales would have been “significant".⁶²¹

444 Ms Bélanger seeks to downplay the lack of scientific evidence supporting the Agency's decision on this point by contending that the Agency applied the precautionary principle.⁶²² The Agency Report, however, does not mention anywhere that it based its conclusions on the precautionary principle,⁶²³ because that would have been unlawful. Indeed, federal law

⁶¹⁷ Counter-Memorial, p. 58 (para. 156); Bélanger, at Exhibit RWS-1, p. 27 (para. 73). ↩

⁶¹⁸ Memorial, p. 198 (para. 520). ↩

⁶¹⁹ Réponses aux questions et commentaires de l'AÉIC – GNLQ, volume 1 rapport principal dated 21 January 2021, at Exhibit R-0085-FRA, p. 238. ↩

⁶²⁰ Agency Report, at Exhibit C-0037-ENG, p. 57. See also Trépanier, at Exhibit RWS-11 (corrected), p. 16 et seq. (para. 39) (“Les données disponibles lors de l'analyse ne permettaient pas d'établir quel niveau de bruit additionnel pourrait être ajouté dans l'habitat du béluga sans le dégrader davantage jusqu'au point de compromettre la réalisation des fonctions vitales de l'espèce et son rétablissement."). ↩

⁶²¹ Northey II, at Exhibit CER-2 (Second), p. 43 et seq. (paras. 105-120). ↩

⁶²² Bélanger, at Exhibit RWS-1, p. 48 (para. 129). ↩

⁶²³ See Agency Report, at Exhibit C-0037-ENG, p. 64 (Parks Canada), p. 65 and 250 (Pessamiulnutsh), p. 110 (Huron-Wendat). ↩

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set strict boundaries for the application of this principle, including the requirement that it be applied based on “sufficiently solid" scientific knowledge.⁶²⁴ As explained in the Federal Government's guidelines on the application of the precautionary principle:

“La notion de fondement scientifique 'suffisamment solide' ou crédible devrait signifier posséder un ensemble d'informations scientifiques – empiriques ou théoriques – permettant d'établir la validité d'une théorie, incertitudes comprises, et révélant un potentiel de risque.”⁶²⁵

445 Neither the Agency in its Report, nor Ms Bélanger in her witness statement, refer to robust or credible scientific evidence regarding the anticipated impact of the GNLQ Project on beluga whales that could have justified invoking the precautionary principle as a basis to reject it.⁶²⁶ The non-application of this principle as a matter of law is addressed further below in Section 4.4.

446 Second, contrary to the Respondent's assertion,⁶²⁷ the Agency did not properly take into consideration the mitigation measures proposed by GNLQ in relation to navigation. The Agency recognised the noise reduction potential of the technologies that GNLQ planned to implement on the tankers to be chartered, but went on to find that “their actual effect on tanker noise levels remains unproven”.⁶²⁸ However, that finding was incorrect.

⁶²⁴ Gouvernement du Canada, Cadre d'Application de la Précaution Dans un Processus Décisionnel Scientifique en Gestion du Risque, at Exhibit ST-0020-FRA, p. 7. ↩
⁶²⁵ Gouvernement du Canada, Cadre d'Application de la Précaution Dans un Processus Décisionnel Scientifique en Gestion du Risque, at Exhibit ST-0020-FRA, p. 8. ↩
⁶²⁶ See CQDE Memorial, p. 15 (para. 61) (Where the CQDE recognises that "une incertitude scientifique importante entourait les impacts du projet sur les bélugas et sur leur habitat essentiel") (emphasis in original). ↩
⁶²⁷ Counter-Memorial, p. 60 (para. 162). ↩
⁶²⁸ Agency Report, at Exhibit C-0037-ENG, p. 60. As explained at footnote 511 above, Transport Canada was financing a CAD 30 million project for the implementation of measures similar to those whose effectiveness the Agency put in doubt in the assessment of the GNLQ Project. ↩

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447 As GNLQ explained to the MELCC in June 2021, the measures that GNLQ was proposing would have reduced subaquatic noise by between 3 and 6 decibels.⁶²⁹ Furthermore, as Mr Bainbridge explains, [Redacted] had confirmed around May 2021 that it could implement these measures and achieve a comparable noise reduction on GNLQ's LNG tankers”.⁶³⁰ There was no doubt that GNLQ would have been able to implement these measures on their tankers.⁶³¹ As such, the Agency's conclusion did not reflect the technological reality presented to it.

448 GNLQ explained as much to the Agency when commenting on the draft Agency Report in October 2021.⁶³² GNLQ also noted that, through its "Charter for the Protection of Marine Mammals”, GNLQ had committed to use all the technological innovations available, and set up a CAD 5 million fund for other users of the Saguenay River to adopt best practices.⁶³³ GNLQ also reiterated its commitment to reduce the number of passages of vessels.⁶³⁴ However, the Agency simply disregarded these

⁶²⁹ GNLQ, Answers to questions and commitments requested by the MELCC dated 3 June 2021, at Exhibit C-0068-FRA, p. 75. See also Bainbridge II, at Exhibit CWS-4 (Second), p. 7 (para. 19) (“GNLQ's proposed noise-mitigation measures required only standard equipment and had been successfully used on survey vessels, passenger ships and navy ships. While applying these measures to LNG tankers would have constituted an innovative evolution in the industry, I have no reason to believe that they would not have been effective."). The Claimant notes that MPO's opinion, dated 11 June 2021, on which the Agency Report is based, refers to GNLQ's proposed measures as of 2019. Avis final de Pêches et Océans Canada - Projet Énergie Saguenay dated 11 June 2021, at Exhibit R-0084-FRA, p. 11. See also Trépanier, at Exhibit RWS-11 (corrected), p. 18 et seq. (paras. 13-14). ↩
⁶³⁰ Bainbridge II, at Exhibit CWS-4 (Second), p. 7 (para. 21). ↩
⁶³¹ See Bainbridge II, at Exhibit CWS-4 (Second), p. 7 et seq. (para. 21). ↩
⁶³² GNLQ, Comments to the Agency dated 22 October 2021, at Exhibit C-0376-FRA, p. 13. ↩
⁶³³ GNLQ, Comments to the Agency dated 22 October 2021, at Exhibit C-0376-FRA, p. 13. See also GNLQ, “Charte d'engagements environnementaux pour la protection des mammifères marins" dated 24 September 2020, at Exhibit C-0264-FRA ("Soutenir concrètement le déploiement de mesures, d'actions et de solutions techniques concrètes développées dans le cadre des travaux de la Charte ou ailleurs dans le monde permettant de réduire le bruit sous- marin dans le fjord du Saguenay et dans le St-Laurent"). ↩
⁶³⁴ GNLQ, Comments to the Agency dated 22 October 2021, at Exhibit C-0376-FRA, p. 12. ↩

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commitments.⁶³⁵ Once again, the Agency assumed without proper scientific foundation that the GNLQ Project would have adverse environmental effects, but when it came to assessing GNLQ's submissions of evidence of counterbalancing effects or (in this instance) proposed mitigation measures, the Agency disregarded those submissions as unproven.

449 This approach stands in stark contrast to the Agency's assessment of the North Shore Terminal project, which was due to generate an increase in maritime traffic comparable to that of the GNLQ Project.⁶³⁶ Yet, for the North Shore Terminal project, in 2018, the Agency did not require the proponent to reach a zero-noise threshold, but instead accepted certain conditions and mitigation measures in relation to subaquatic noise. Furthermore, as the Agency admitted in a comment within an initial draft of its Report for the GNLQ Project, the conditions relating to the North Shore Terminal project were not binding and did not guarantee any reduction of subaquatic noise.⁶³⁷

⁶³⁵ See Agency Report, at Exhibit C-0037-ENG, p. 68 (“the Charter for the Protection of Marine Mammals, developed by the Proponent, demonstrates its willingness to find solutions to reduce underwater noise. However, their actual effect on tanker noise levels remains unproven, as does their effect on the duration and intensity of beluga exposure to these noise levels.") and Agency Report, at Exhibit C-0037-ENG, p. 161 (acknowledging that "[t]he Project would add between 140 and 165 tankers (between 280 and 330 passages) annually to the commercial traffic on the Saguenay River"). ↩
⁶³⁶ See Agency, Environmental Assessment Report for the North Shore Terminal project (October 2018), at Exhibit C-0215-ENG, p. 209 of the PDF ("According to the proponent's estimates, the Saguenay River would remain free from the noise of large vessels 95.7% of the time the beluga whale is present, between May and October, considering the completion of all the potential projects currently known, i.e. an increase of 410 vessels on the Saguenay River by 2030. This scenario would bring to 635 the total number of vessels that could use the Saguenay River annually in 2030. The contribution of marine traffic related to the project would be 140 vessels by 2030 according to the maximum operating scenario, which represents 2 to 3 vessel movements per week directly related to the project. The Agency relies on the advice of Fisheries and Oceans Canada, which considers that the risk of an adverse effect on the beluga population of the St. Lawrence Estuary caused by the increase in marine traffic related to the project would be low") (emphasis added). ↩
⁶³⁷ Agency, Draft report on the effects of underwater noise, at Exhibit C-0544-FRA, p. 9 (“Il y a bien eu quelques conditions dans la déclaration de décision pour le Terminal en rive nord du Saguenay, mais celles-ci sont peut contraignantes et ne garantissent pas une réduction du bruit"). ↩

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(iii) The Agency's assessment of the impact of the GNLQ Project on the Innu First Nations'cultural heritage was purely speculative

450 In the Memorial, the Claimant established that the Agency's analysis of the impact of the GNLQ Project on Innu First Nations' cultural heritage was unsubstantiated and solely based on the assumption that beluga whales were important for the Innu First Nations and, consequently, parasitic on its speculative and unfounded assessment as to the effects of the project on beluga whales.⁶³⁸

451 Neither the Respondent in the Counter-Memorial, nor its witnesses, provide any response to the Claimant's position on this point, which therefore stands.

452 In conclusion, the decision of the federal Minister of Environment of 9 December 2021 that, having taken into account the proposed mitigation measures, the GNLQ Project was likely to cause significant adverse environmental effects in relation to global GHG emissions, marine mammals and Innu First Nations, was unfounded and unlawful. This is because it relied on the Agency's wrongful and speculative analysis of grounds outside of the scope of the EIS Guidelines.⁶³⁹ The federal Cabinet's decision of 3 February 2022 and the subsequent Decision Statement of 7 February 2022, that such alleged effects were not justified in the circumstances were thus equally ill-premised and unlawful.⁶⁴⁰

2.7 The Respondent misrepresents the history of the Gazoduq Project and its prospects of success

453 In the Memorial, the Claimant explained how, in parallel to developing the GNLQ Project, Symbio – via its subsidiary, Gazoduq – made significant progress towards developing the related Gazoduq Project, a natural gas

⁶³⁸ Memorial, p. 108 et seq. (paras. 333-335); Northey I, at Exhibit CER-2, p. 69 et seq. (p. 72 of the PDF) (paras. 195, 200). ↩
⁶³⁹ See Note de service au ministre: Projet Énergie Saguenay – Décision sur l'importance des effets et renvoi possible au gouverneur en conseil dated 9 December 2021, at Exhibit TH-0003- FRA. See also Government of Canada, "Énergie Saguenay, Orders in Council" dated 3 February 2022, at Exhibit RN-0030-ENG, p. 1 et seq. ↩
⁶⁴⁰ Government of Canada, "Énergie Saguenay, Orders in Council" dated 3 February 2022, at Exhibit RN-0030-ENG, p. 4 et seq. See also Decision Statement, at Exhibit RN-0004-ENG. ↩

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pipeline to transport gas from eastern Ontario to the LNG terminal at Saguenay.⁶⁴¹

454 In its Counter-Memorial, the Respondent seeks to portray Gazoduq as a nascent project that had barely started by the time Québec denied the GNLQ Project in July 2021.

455 As explained below, the Respondent's misrepresentation of the Gazoduq Project, and in particular, its progress in obtaining regulatory approvals, not correspond to its true history, as established by the evidence.

456 In respect of the Gazoduq Project, as the Claimant explains further below in Section 2.7.1, the history of the applicable legal framework is complicated by the fact that Canada overhauled the federal legal regime for the review and approval of interprovincial pipeline projects mid-way through Gazoduq's application process. The Claimant herein refers to the “regulatory process” as an all-encompassing term to describe the changing processes, including EA process, of obtaining federal and provincial approvals, towards which Gazoduq worked from 2018 up until Québec refused the GNLQ Project in July 2021.

457 Notwithstanding that Canada's changes to its regulatory regime in mid- 2019 forced Gazoduq to restart its federal regulatory process one year after commencing it, by July 2021, Gazoduq had made significant progress towards receiving the relevant approvals from Canada and Québec, which had agreed to conduct their EA of the Gazoduq Project as part of a cooperative process (Section 2.7.1).

458 Furthermore, by then, the Gazoduq Project was already substantially de- risked from a commercial and technical perspective, and there were no concerns as to the social or Indigenous acceptability of the (Section 2.7.2).

459 As for the Respondent's suggestion that Symbio ought to have continued the Gazoduq Project even after Québec refused the GNLQ Project on 21 July 2021, it is disingenuous. In light of Minister Charette's statement at

⁶⁴¹ Memorial, p. 30 et seq. (s. H). ↩

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the time that the refusal of the GNLQ Project also spelled the death of the Gazoduq Project, that was no longer a realistic option (Section 2.7.3).

460 As for the Respondent's argument that, regardless of the refusal of the GNLQ Project, the remainder of Gazoduq's regulatory review process would have been drawn out and uncertain, it is contradicted by the evidence. On the contrary, Gazoduq's expectation of receiving provincial and federal regulatory approvals by November 2023 was reasonable (Section 2.7.4).

2.7.1 Gazoduq made significant progress towards receiving its regulatory approvals at the provincial and federal levels

461 In its Counter-Memorial, the Respondent asserts that the provincial EA of the Gazoduq Project was “peu avancée” and that the federal regulatory process “était à peine amorcée”.⁶⁴² Those assertions are misleading. The Gazoduq Project had made significant progress towards submitting its application for both the federal and Québec processes and was well on track to receive its federal and provincial approvals in late 2023.

462 Gazoduq applied to initiate both the Québec and federal regulatory processes in November 2018 (Section 2.7.1.1). However, as a result of Canada's transition to a new federal regulatory regime under the Impact Assessment Act (“IAA”), which entered into force in August 2019, Gazoduq was forced to re-start the federal impact assessment ("IA") process, which it did by submitting a new Initial Project Description in October 2019 (Sections 2.7.1.2 and 2.6.1.3). However, the inefficiency of Canada's legislative transition did not prevent Gazoduq from progressing the design, environmental studies and community consultations necessary to progress Gazoduq's consolidated regulatory application, and thereafter it continued those preparations under the auspices of the new IAA regime (Section 2.7.1.4).

⁶⁴² Counter-Memorial, p. 286 et seq. (paras. 710-711). ↩

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2.7.1.1 Gazoduq initiated the federal and Québec approval processes in November 2018 under the then applicable regulatory regime

463 In the Counter-Memorial, the Respondent acknowledges that Gazoduq submitted its project notice to the MELCC, thereby initiating the Québec EA process, in November 2018.⁶⁴³ However, with regard to the federal regulatory process, the Respondent simply states that Gazoduq submitted a project notice to the Agency in October 2019.⁶⁴⁴ The Respondent ignores that Gazoduq had already applied to initiate the federal regulatory process eleven months earlier, in November 2018, by filing a Pre-Application Project Description (“PAPD”) to the NEB.⁶⁴⁵

464 As at November 2018, the federal environmental regulatory regime applicable to the Gazoduq Project was indeed the CEAA 2012. The NEB, as the regulator responsible for authorising the construction and operation of gas pipelines, would have carried out Gazoduq's EA in accordance with its own procedures under the National Energy Board Act (“NEB Act”).⁶⁴⁶ However, the Federal Government's intention to replace the CEAA 2012 with what would become the Impact Assessment Act 2019 (known prior to its enactment as “Bill C-69”) had complicated the regulatory landscape. In late 2018, Bill C-69 had not yet passed the Senate in Parliament,⁶⁴⁷ and it

⁶⁴³ Counter-Memorial, p. 64 (para. 173). See also PR1.1 – GAZODUQ INC., Avis de projet, (novembre 2018), at Exhibit TLV-0051-FRA. ↩
⁶⁴⁴ Counter-Memorial, p. 64 (para. 173). ↩
⁶⁴⁵ See First Witness Statement of Ron Brintnell dated 20 November 2023, at Exhibit CWS- 5, p. 9 (para. 35); Menzies, at Exhibit CWS-7, p. 8 et seq. (para. 22); Letter from Gazoduq to the NEB (Pre-Application Project Description) dated 20 November 2018, at Exhibit RB-0009- ENG; Gazoduq Project, Pre-Application Project Description (November 2018), at Exhibit RB- 0010-ENG; Projet Gazoduq, Description du projet préalable à la demande, (novembre 2018), déposé à La secrétaire de l'Office national de l'énergie, Doc. No. 2018-11-20 A95939-2, at Exhibit TLV-0050-FRA. ↩
⁶⁴⁶ National Energy Board Act, at Exhibit C-0545-ENG-FRA, p. 61 (s. 52(3)). See also Menzies, at Exhibit CWS-7, p. 7 (para. 17). ↩
⁶⁴⁷ See Bill C-69 following Third Reading in the House of Commons dated 20 June 2018, at Exhibit C-0546-ENG-FRA. ↩

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was unclear whether or in what form Bill C-69 would receive Parliamentary approval.⁶⁴⁸

465 Therefore, when Gazoduq sought to initiate the federal regulatory approval process by filing the PAPD with the NEB in November 2018, as required under the NEB's regulatory framework in place at the time. It did so not knowing whether or when Bill C-69 would be passed, and hoping that, if so, it would be "grandfathered" under the CEAA 2012 and the NEB Act.⁶⁴⁹ This was a reasonable expectation on Gazoduq's part, as the Federal Government had confirmed when announcing the transition to the new regime that "[n]o project proponent [would] be asked to return to the starting line".⁶⁵⁰

466 As Ms Adrienne Menzies, who has extensive experience working on federal regulatory processes for pipeline projects and worked for Gazoduq, explains in her witness statement, the process was to be as follows:

• After Gazoduq filed its PAPD with the NEB, the next step would have been to prepare and file its "certificate application" requesting the NEB's approval to construct and operate the Gazoduq pipeline.⁶⁵¹
• The certificate application would include, among other components, Gazoduq's environmental impact statement for the purposes of the CEAA 2012 environmental approval process.
• As was typical for natural gas pipelines with multi-jurisdictional review processes, Gazoduq planned to address both the federal and Québec regulatory requirements via a single, consolidated application (referred to below as Gazoduq's regulatory “Application”).⁶⁵²

467 When it filed the PAPD in November 2018, based on the Gazoduq team's experience of the NEB's regulatory process and other pipeline regulatory

⁶⁴⁸ Menzies, at Exhibit CWS-7, p. 7 (para. 18). See also Illich II, at Exhibit CWS-1 (Second), p. 23 (para. 51). ↩
⁶⁴⁹ Menzies, at Exhibit CWS-7, p. 7 (para. 19). See also Letter from Gazoduq to the NEB (Pre- Application Project Description) dated 20 November 2018, at Exhibit RB-0009-ENG, p. 3. ↩
⁶⁵⁰ Government of Canada Statement: "Government of Canada Moves to Restore Trust in Environmental Assessment" dated 27 January 2016, at Exhibit AM-0001-ENG, p. 2. ↩
⁶⁵¹ Menzies, at Exhibit CWS-7, p. 7 et seq. (para. 20). ↩
⁶⁵² Menzies, at Exhibit CWS-7, p. 8 (para. 21). ↩

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approval processes, Gazoduq expected to file its Application with the NEB and MELCC by the end of 2019.⁶⁵³ Accordingly, Gazoduq started the initial work towards preparing its Application in late 2018, building on the technical, stakeholder (including First Nations) engagement and regulatory work that it had already carried out throughout 2018.⁶⁵⁴

468 The Respondent is thus wrong to imply in its Counter-Memorial, as it does, that by July 2021, Gazoduq had not made progress through the federal or provincial EA processes. As Mr Illich points out in his second witness statement, by July 2021 when Québec declared both Projects "dead”, from his perspective, Gazoduq had already spent three and a half years developing the pipeline, including two and a half years on its EA processes.⁶⁵⁵ Gazoduq had also invested considerably in those processes: Secretariat's analysis shows that between 2018 and 2021 incurred costs of USD 29,883,772 in development of the Gazoduq Project.⁶⁵⁶

2.7.1.2 Gazoduq re-initiated the federal regulatory process under the IAA

469 Following Gazoduq's submission of its PAPD, the NEB proceeded with the pre-application activities forming part of its typical regulatory process.⁶⁵⁷ In parallel, the MELCC undertook the initial steps in the Québec regulatory process; in particular, it issued a directive setting out

⁶⁵³ Illich II, at Exhibit CWS-1 (Second), p. 23 (para. 50). ↩
⁶⁵⁴ Menzies, at Exhibit CWS-7, p. 8 (para. 21). See also Brintnell I, at Exhibit CWS-5, p. 4 et seq. (s. III); First Witness Statement of Denis Roux dated 21 November 2023, at Exhibit CWS-6, p. 9 et seq. (paras. 36-49). ↩
⁶⁵⁵ Illich II, at Exhibit CWS-1 (Second), p. 22 et seq. (para. 49). ↩
⁶⁵⁶ See Amounts Invested in Projects (2014-2022), at Exhibit CER-3-Appendix C, "C.1_Summary Amts", sum Cells G14-J14. ↩
⁶⁵⁷ Such activities included contacting potentially affected Indigenous communities to notify them of Gazoduq's PAPD and the upcoming public hearing process to be conducted by the NEB: see, e.g., Letter from the NEB to Flying Post First Nation dated 29 May 2019, at Exhibit C-0547-ENG. ↩

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the detailed guidelines for Gazoduq's Application on 6 December 2018 (the "Gazoduq Directive").⁶⁵⁸

470 For its part, over the course of late 2018 and during 2019, Gazoduq continued to develop the Gazoduq Project, including work that would form part of its Application.⁶⁵⁹ Such work included:

• a series of public consultations with communities along the pipeline route;⁶⁶⁰
• continuing the engagement with Indigenous communities that Gazoduq had already commenced in spring 2018, including (for example) to consider Indigenous input on the development of the pipeline route;⁶⁶¹
• a comprehensive environmental field survey programme;⁶⁶²
• announcing the "preferred planning area” (“PPA”) for the eventual pipeline route in April 2019;⁶⁶³

⁶⁵⁸ Ministère de l'Environnement et de la Lutte contre les changements climatiques, Guideline for conducting an environmental impact assessment: Gazoduq Project by Gazoduq Inc., at Exhibit CD-0161-FRA. On 7 February 2019 the MELCC also issued a document setting out the results of its public consultation on the issues that Gazoduq's Application should address: Ministère de l'Environnement et de la Lutte contre les changements climatiques, Comments on the issues that the impact study should address: Gazoduq project, at Exhibit CD-0162-FRA. ↩
⁶⁵⁹ See Gazoduq, Quarterly Report (Q1 2019) dated 1 April 2019, at Exhibit RB-0038-ENG; Gazoduq, Quarterly Report (Q2 2019), at Exhibit C-0548-ENG; Gazoduq, Quarterly Report (Q3 2019) dated 1 October 2019, at Exhibit C-0549-ENG; Gazoduq, Quarterly Report (Q4 2019) dated 1 January 2020, at Exhibit C-0550-ENG. ↩
⁶⁶⁰ Gazoduq, Quarterly Report (Q1 2019) dated 1 April 2019, at Exhibit RB-0038-ENG, p. 1; Brintnell I, at Exhibit CWS-5, p. 9 (para. 33). ↩
⁶⁶¹ Roux I, at Exhibit CWS-6, p. 10 et seq. (paras. 38-69). See also Second Witness Statement of Denis Roux, at Exhibit CWS-6 (Second), p. 16 et seq. (paras. 40-43). ↩
⁶⁶² See Gazoduq, Quarterly Report (Q1 2019) dated 1 April 2019, at Exhibit RB-0038-ENG, p. 3; Gazoduq, Quarterly Report (Q2 2019), at Exhibit C-0548-ENG, p. 4 et seq.; Gazoduq, Quarterly Report (Q3 2019) dated 1 October 2019, at Exhibit C-0549-ENG, p. 3 et seq. ↩
⁶⁶³ The PPA consisted of a 400m-wide corridor along the length of the route within the original, much wider "Study Corridor". Gazoduq updated its project description submissions to the NEB and MELCC to notify them of the PPA route: Letter from Gazoduq to the NEB dated 23 April 2019, at Exhibit C-0126-ENG; Ministère du Développement durable, de l'Environnement, de la Faune et des Parcs, Registre des évaluations environnementales, Avis de projet, Projet Gazoduq, mise à jour avril 2019, at Exhibit CD-0095-FRA. Gazoduq further narrowed down the PPA in the Ontario part of the route in June 2019 (and updated the NEB accordingly) after ↩

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• engaging consultants to undertake key sector studies;⁶⁶⁴ and
• completing a comprehensive FEED study for the natural gas pipeline, prepared by UniversalPegasus International (“UPI”), a leading expert consultancy in pipeline engineering and design.⁶⁶⁵

471 However, during the same period, over the course of several meetings that Gazoduq attended with the NEB and other Federal Government representatives, the Agency revealed that the Federal Government would not in fact "grandfather" Gazoduq's Application under the CEAA 2012 regulatory regime, and that Gazoduq was required to restart the process under the IAA.⁶⁶⁶ Therefore, shortly after the IAA came into force in August 2019, Gazoduq prepared and, on 10 October 2019, filed its Initial Project Description (“IPD”) with the Agency, thereby formally reinitiating the federal regulatory process under the (new) IAA.⁶⁶⁷

472 Being forced to restart the federal regulatory process in that way delayed Gazoduq's project schedule, because it pushed back the earliest date by which Gazoduq could have filed its Application.⁶⁶⁸ Instead of filing it with the NEB at the end of 2019 as originally planned,⁶⁶⁹ Gazoduq would have to wait until the Agency would publish "Tailored Impact Statement Guidelines" ("TIS Guidelines” or “TISG”) containing the information requirements to which Gazoduq would need to respond in the Application.⁶⁷⁰

agreeing a preferred tie-in location with TC Energy where the Gazoduq Project pipeline would connect to TC Energy's existing system: Letter from Gazoduq to the NEB (PAPD Update) dated 27 June 2019, at Exhibit AM-0003-ENG.
⁶⁶⁴ Gazoduq, Quarterly Report (Q3 2019) dated 1 October 2019, at Exhibit C-0549-ENG, p. 4. ↩
⁶⁶⁵ See paragraph 497 below. ↩
⁶⁶⁶ See Menzies, at Exhibit CWS-7, p. 9 et seq. (paras. 23-29). ↩
⁶⁶⁷ Gazoduq, Initial Project Description of a Designated Project dated 10 October 2019, at Exhibit C-0129-ENG-FRA. See also Brintnell I, at Exhibit CWS-5, p. 9 (para. 36); Menzies, at Exhibit CWS-7, p. 13 (para. 32). ↩
⁶⁶⁸ Menzies, at Exhibit CWS-7, p. 13 et seq. (paras. 34-36). See also Illich II, at Exhibit CWS- 1 (Second), p. 25 (para. 57). ↩
⁶⁶⁹ See paragraphs 466-467 above. ↩
⁶⁷⁰ Menzies, at Exhibit CWS-7, p. 13 (para. 35). ↩

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Nevertheless, as explained below (see Sections 2.7.1.3 and 2.7.4), despite the inefficiency caused by the transition between regimes, the IAA process itself ought to have been efficient, once underway.

2.7.1.3 The IAA regulatory approval process for CER-regulated natural gas pipelines

474 The IAA regulatory approval process replaced the previous NEB-led pipeline approval process. Under the IAA, the Agency would conduct the IA in collaboration with the Canada Energy Regulator (“CER"), which had replaced the NEB as the national regulator for gas pipelines. The IAA process for CER-regulated gas pipelines (such as Gazoduq) consisted of four key "Phases" preceding the Government's authorisation decision, each of which had maximum associated timeframes under the IAA.⁶⁷¹

475 Phase 1 ("Planning Phase"): The Planning Phase began with the proponent submitting its Initial Project Description (IPD). During this phase, the Agency would conduct early consultation and engagement activities and the proponent would be required to submit a Detailed Project Description ("DPD”), resulting in its publication of TIS Guidelines for the project. The TISG would contain the information requirements for the proponent to include in its impact statement. The Planning Phase could last up to 180 days (extendable by 90 days at the request of another jurisdiction to enable the Agency to cooperate with that jurisdiction).⁶⁷²

476 Phase 2 ("Impact Statement Phase"): During the Impact Statement Phase, the project proponent would prepare and submit its impact statement responding to the TIS Guidelines. The proponent could submit its impact statement as soon as it was ready after issuance of the TIS Guidelines. The maximum timeframe for Phase 2 was three years, subject to extension upon request by the project proponent.⁶⁷³ Phase 2 would end once the Agency was satisfied that the proponent had provided the

⁶⁷¹ Whilst the high-level description Mr O'Gorman provides (O'Gorman, at Exhibit RER-4, p. 8 et seq. (para. 16)) is broadly accurate, the Claimant does not accept Mr O'Gorman's description of the IAA process more generally, as explained in this Section 2.7.1.3 and below in Section 2.7.4. ↩
⁶⁷² Impact Assessment Act, at Exhibit DO-0010-ENG-FRA, p. 16 et seq. (ss. 18(1) and 18(3)). ↩
⁶⁷³ Impact Assessment Act, at Exhibit DO-0010-ENG-FRA, p. 18 (ss. 19(1) and 19(2)). ↩

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information or studies requested in the TISG, at which point the Agency was required to post a notice on its website accepting the proponent's impact statement for detailed review.⁶⁷⁴

477 Phase 3 (“IA Phase”): During the IA Phase, an independent review panel would assess the proponent's impact statement (including by collecting views from the public and Indigenous communities and holding public hearings) and develop an IA report. The Agency would then submit a recommendation to the Government to assist in establishing conditions for its decision statement. The Agency was required to set a time limit for Phase 3 of up to 600 days.⁶⁷⁵

478 Phase 4 (“Decision-making Phase"): Finally, in the Decision-making Phase, the Governor in Council (i.e., the Cabinet) would issue a decision statement approving or denying the project. The decision statement would include any conditions with which the proponent would have to comply. The maximum timeframe for the decision statement would be 90 days from the day the Agency posts recommendations for the Government's decision statement at the end of Phase 3.⁶⁷⁶ Following Phase 4, there was also a "Post-Decision Phase” (Phase 5) consisting of condition compliance and monitoring.

479 Throughout the IAA process, project proponents and the Government would continuously engage with Indigenous communities to seek their input and ensure consideration of Indigenous knowledge. As explained further below and by Mr Roux in his witness statements, Gazoduq took its engagement efforts with Indigenous communities seriously from the outset and indeed engaged with the potentially affected Indigenous communities continuously, starting from spring 2018, long before the IAA process started.⁶⁷⁷

⁶⁷⁴ Impact Assessment Act, at Exhibit DO-0010-ENG-FRA, p. 18 (s. 19(4)). ↩
⁶⁷⁵ Impact Assessment Act, at Exhibit DO-0010-ENG-FRA, p. 28 (ss. 37(1) and 37(2)). ↩
⁶⁷⁶ Impact Assessment Act, at Exhibit DO-0010-ENG-FRA, p. 45 (s. 65(4)(b)). ↩
⁶⁷⁷ Roux I, at Exhibit CWS-6, p. 10 et seq. (s. III.D.1). ↩

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2.7.1.4 Gazoduq continued its efforts to complete its regulatory application under the new IAA regime

480 After Gazoduq submitted its IPD in October 2019, the Agency commenced the Planning Phase of the IAA process (Phase 1).⁶⁷⁸

481 During the Planning Phase, the Agency held consultations with the public and Indigenous communities to inform its preparation of the TIS Guidelines.⁶⁷⁹ In accordance with the IAA, Gazoduq submitted a Detailed Project Description (DPD) on 10 January 2020 which included Gazoduq's responses to the summary of issues raised in the Agency's public consultations.⁶⁸⁰ Also as part of the Planning Phase, the Agency issued a notice formally deciding that the Gazoduq Project required an IA.⁶⁸¹

482 Although the Planning Phase would normally have been completed by April 2020, the Agency extended it at Québec's request by 90 days (as was permissible under the IAA) to enable cooperation between the Agency and Québec, in light of the Covid-19 pandemic.⁶⁸² In June 2020, the Governments of Canada and Québec signed a Cooperation Agreement (the “QC-CAN Gazoduq Cooperation Agreement”) in which they agreed to coordinate their parallel regulatory processes for the Gazoduq Project,⁶⁸³

⁶⁷⁸ Bélanger, at Exhibit RWS-1, p. 58 (paras. 159-161). ↩
⁶⁷⁹ Bélanger, at Exhibit RWS-1, p. 58 et seq. (paras. 160, 163). ↩
⁶⁸⁰ Brintnell I, at Exhibit CWS-5, p.10 et seq. (paras. 39-40). ↩
⁶⁸¹ The Agency's decision was a mere formality under the IAA (see Impact Assessment Act, at Exhibit DO-0010-ENG-FRA, p. 15 (s. 16(1))) – it was never seriously in question that a 780 km inter-provincial gas pipeline would require an impact assessment. However, in its Counter-Memorial, the Respondent mischaracterises this decision, incorrectly stating that the Agency had "déterminé que le projet, tel que soumis, était susceptible d'entraîner des effets négatifs relevant de compétence fédérale." (Counter-Memorial, p. 65 (para. 175)). In fact, the Agency had made no such "determination". Rather, its decision merely stated that it had "taken into account [...] the possibility that carrying out the Project may cause adverse effects within federal jurisdiction": Agency, Canadian Impact Assessment Registry, Gazoduq Project, Notice of Impact Assessment Decision with Reasons dated 22 January 2020, at Exhibit DO-0110- ENG, p. 1 (emphasis added). See also Projet Gazoduq - Avis de décision d'évaluation d'impact assortie de motifs dated 22 January 2020, at Exhibit GB-0058-FRA. ↩
⁶⁸² Agency, Canadian Assessment Impact Registry, Gazoduq Project, Notice of Time Limit Extension with Reasons dated 14 April 2020, at Exhibit DO-0113-ENG. ↩
⁶⁸³ Impact Assessment Agency of Canada, Cooperation Plan for the Impact Assessment of the Gazoduq Project dated 30 June 2020, at Exhibit DO-0115-ENG; Entente de collaboration entre ↩

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including by holding joint public hearings.⁶⁸⁴ On 17 July 2020, the Agency published the final TIS Guidelines,⁶⁸⁵ bringing an end to the Planning Phase and commencing the IA Phase (Phase 2) of the IAA process.⁶⁸⁶

483 The next step in both the provincial and federal regulatory processes was for Gazoduq to finalise and submit its consolidated Application, constituting its EIS for the purposes of the Québec EQA and its impact statement for the purposes of the federal IAA.⁶⁸⁷ The Application would comprise several volumes and numerous appendices prepared by Gazoduq's multi-disciplinary team, its consultants and its advisors, and would run to thousands of pages.⁶⁸⁸

484 In his report, Mr O'Gorman speculates that Gazoduq may have "significantly underestimated" the effort required to prepare its Application.⁶⁸⁹ His speculation is groundless. Ms Menzies is a former Senior Advisor in Gazoduq's Regulatory Affairs team and has significant career experience preparing regulatory filings for federally regulated pipeline projects.⁶⁹⁰ As she explains in her witness statement, by early

le gouvernement du Canada et le gouvernement du Québec concernant la coordination des procédures d'évaluation environnementale et d'impact relatives au projet Gazoduq, juin 2020, at Exhibit CD-0144-FRA.
⁶⁸⁴ Impact Assessment Agency of Canada, Cooperation Plan for the Impact Assessment of the Gazoduq Project dated 30 June 2020, at Exhibit DO-0115-ENG, p. 7 (clause 7.6). ↩
⁶⁸⁵ As Ms Menzies explains in her witness statement, the Agency also issued two prior iterative draft versions of the TISG, first in June 2019 and again in January 2020: Menzies, at Exhibit CWS-7, p. 12 et seq. (paras. 30, 38). Before the Agency issued the final TISG, Gazoduq used the draft TISG to prepare its Application, in addition to the pre-existing filing guidelines under the NEB regime, as well as the Gazoduq Directive for the purposes of the Québec environmental assessment process: Menzies, at Exhibit CWS-7, p. 14 et seq. (para. 39). ↩
⁶⁸⁶ Agency, TISG for Gazoduq Project dated 17 July 2020, at Exhibit DO-0116-ENG. ↩
⁶⁸⁷ See Menzies, at Exhibit CWS-7, p. 8 (para. 21). ↩
⁶⁸⁸ Menzies, at Exhibit CWS-7, p. 16 (para. 45). The subjects of the Application volumes would include: Gazoduq's environmental impact statement (EIS, including sectorial studies, technical data reports and its Preliminary Environmental Protection Plan); Stakeholder Consultation; Indigenous Peoples; Land; Engineering; Construction and Operations; Commercial; Maps and a standalone Tolls and Tariff Application. As Ms Menzies explains, the Tolls and Tariff Application was not strictly an IAA requirement, but rather a separate application to be submitted pursuant to Part III of the Canada Energy Regulator Act: Menzies, at Exhibit CWS-7, p. 17 (para. 48). ↩
⁶⁸⁹ O'Gorman, at Exhibit RER-4, p. 50 (para. 113). ↩
⁶⁹⁰ Menzies, at Exhibit CWS-7, p. 4 et seq. (s. 2). ↩

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2020, Gazoduq had made significant progress toward preparing its Application.⁶⁹¹ She estimates that the drafts as they stood in March-April 2020 (which amounted to 9,388 pages in total) only required two to three more months of work to be considered “fit for purpose" based on the then-available Application guidelines.⁶⁹²

485 However, with the onset of the Covid-19 pandemic in March 2020, the associated lockdown restrictions in Canada prohibited Gazoduq from conducting field studies and Indigenous community engagement efforts that would feed into the Application.⁶⁹³ In the remainder of 2020, Gazoduq was therefore limited to reviewing the Agency's TIS Guidelines to assess what further work was required to respond to new requirements set out in those guidelines, and to reevaluating the Symbio Project schedule accordingly.⁶⁹⁴ It also carried out further, ad hoc desktop engineering work such as studying the electrification of the compressor stations (based on which it received a CAD 1.9 million grant from Emissions Reductions Alberta).⁶⁹⁵

486 In January 2021, Symbio released a new Project schedule in which Gazoduq targeted 15 July 2022 to file its Application.⁶⁹⁶ Based on its July

⁶⁹¹ Menzies, at Exhibit CWS-7, p. 14 et seq. (para. 39) and p. 20 (para. 58). ↩
⁶⁹² With the exception of the "Commercial" volume, which Ms Menzies estimates would require four months of work. See Menzies, at Exhibit CWS-7, p. 20 (para. 58); Menzies, Annex A, at Exhibit CWS-7 (Annex A), row 130. As Ms Menzies explains, the draft volumes and appendices would have been prepared by the relevant discipline leads and consultants to adhere to the applicable TIS Guidelines requirements up to the first draft TIS Guidelines issued in June 2019, but she assumes they would not yet account for additional requirements contained in the January or July 2020 iterations of the TIS Guidelines. Therefore, some additional time would be needed to conform the Application to the final TIS Guidelines: see CWS-7, p. 21 (paras. 60- 61). ↩
⁶⁹³ Illich II, at Exhibit CWS-1 (Second), p. 31 et seq. (para. 66); Menzies, at Exhibit CWS- 7, p. 25 (para. 71); Second Witness Statement of Ron Brintnell dated 15 April 2025, at Exhibit CWS-5 (Second), p. 6 (para. 14). ↩
⁶⁹⁴ Illich II, at Exhibit CWS-1 (Second), p. 31 et seq. (para. 66). ↩
⁶⁹⁵ Brintnell I, at Exhibit CWS-5, p. 12 et seq. (paras. 44, 49); Gazoduq, "ERA Full Project Proposal" dated 31 July 2020, at Exhibit RB-0013-ENG; Email from Steve MacDonald to Jim Illich, "ERA Funding for Gazoduq" dated 5 February 2021, at Exhibit RB-0014-ENG. ↩
⁶⁹⁶ Illich II, at Exhibit CWS-1 (Second), p. 32 et seq. (s. 4.3); GNLQ, Private Placement Memorandum (Addendum) dated 8 January 2021, at Exhibit SEC-0101-ENG, p. 7; LNG ↩

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2022 filing date, Symbio estimated that Gazoduq would receive regulatory approvals from the Québec and Federal Governments by Q4 2023, enabling the entire Symbio Project to proceed to a positive FID shortly thereafter.⁶⁹⁷

487 With its new Project schedule in mind, in early 2021, Gazoduq worked towards what it described as a “re-launch” of the Gazoduq Project.⁶⁹⁸ Those re-launch activities included preparing to conduct an environmental field survey programme during the summer and fall of 2021. Mr O'Gorman infers from the term “re-launch” that Gazoduq had stopped working actively towards preparing its Application prior to April 2021.⁶⁹⁹ He is incorrect to do so. As Mr Brintnell explains in his second witness statement, the term “re-launch" simply reflected the team transitioning from the period during mid- to late-2020 where Covid-19 had restricted the team's activity, to early 2021 where the Gazoduq team and its consultants once again ramped up their activities towards finalising the Application.⁷⁰⁰

488 In May 2021, Gazoduq engaged WSP, a leading consulting firm, to act as "primary consultant”, taking lead responsibility for supporting completion of Gazoduq's Application.⁷⁰¹ WSP has extensive experience supporting regulatory processes for large, linear projects (such as pipelines, railways, roads and power lines) and was already familiar with the Gazoduq Project from its work on the GNLQ Project.⁷⁰²

Quebec LP Schedule (January 2021), at Exhibit JI-0157-ENG. Incidentally, July 2022 is similar to Mr O'Gorman's opinion in his report that Gazoduq would have been in position to submit its Application by “fall 2022": O'Gorman, at Exhibit RER-4, p. 58 (para. 134, second bullet).
⁶⁹⁷ LNG Quebec LP Schedule (January 2021), at Exhibit JI-0157-ENG. Mr Illich explains in his second witness statement the timing estimates underlying Gazoduq's schedule: Illich II, at Exhibit CWS-1 (Second), p. 32 et seq. (paras. 67-71). See also Section 2.7.4.2 below. ↩
⁶⁹⁸ Brintnell II, at Exhibit CWS-5 (Second), p. 6 et seq. (para. 15). ↩
⁶⁹⁹ O'Gorman, at Exhibit RER-4, p. 50 (para. 114). ↩
⁷⁰⁰ Brintnell II, at Exhibit CWS-5 (Second), p. 6 et seq. (para. 15). ↩
⁷⁰¹ Brintnell II, at Exhibit CWS-5 (Second), p. 7 (para. 18). ↩
⁷⁰² See Brintnell II, at Exhibit CWS-5 (Second), p. 7 (para. 17). See also Le Verger II, at Exhibit CWS-3 (Second), p. 28 (para. 80). ↩

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In preparation for Gazoduq's 2021 field programme, Ms Cathy Baptista (Gazoduq's Director of Environment) engaged closely with the Québec MFFP to obtain the necessary permits to conduct the surveys.⁷⁰³ In this regard, the assertion of Mr Jean-François Bergeron – who worked as a coordinator within the MFFP at the relevant time -in his witness statement that he did not have any contact with Ms Baptista from 10 March 2020 onwards, is wrong,⁷⁰⁴ as is the Respondent's reliance on his evidence to assert that Gazoduq “n'a donné aucune suite aux exigences relatives à l'étude d'impact qu'il devait réaliser.”⁷⁰⁵ Mr Bergeron's testimony is indeed flatly contradicted by the documentary record, which reveals numerous emails between him and Ms Baptista between January and July 2021, including in which Ms Baptista specifically requested his assistance to obtain permits for Gazoduq's 2021 field surveys.⁷⁰⁶ Those emails also undermine the Respondent's assertion that Gazoduq did not progress its Application.

490 Furthermore, Gazoduq also re-initiated its engagement efforts with the Indigenous communities in the vicinity of the Gazoduq Project during early 2021, in particular Mamo Aki, the group of eight Indigenous

⁷⁰³ Brintnell II, at Exhibit CWS-5 (Second), p. 7 (para. 16). Based on the work Gazoduq intended to conduct during the 2021 field programme, it would need "de permis d'intervention" and "de permis SEG" for the areas in which it planned fieldwork along the gas pipeline route. Gazoduq requested these permits, which had a short lead time, in July 2021, planning to commence the field programme in August 2021. See Email from J.F. Bergeron (MFFP) to C. Baptista (Gazoduq) dated 16 July 2021, at Exhibit C-0551-FRA. See also Email from J.F. Bergeron (MFFP) to C. Baptista (Gazoduq) dated 30 July 2019, at Exhibit C-0552-FRA and Email from J.F. Bergeron (MFFP) to C. Baptista (Gazoduq) dated 11 February 2020, at Exhibit C-0553, demonstrating that obtaining such permits was a quick and straightforward process. ↩
⁷⁰⁴ Witness Statement of Jean-Francois Bergeron dated 12 July 2024, at Exhibit RWS-3, p. 18 et seq. (paras. 49, 51). ↩
⁷⁰⁵ Counter-Memorial, p. 66 (para. 179). ↩
⁷⁰⁶ Email from J.F. Bergeron (MFFP) to C. Baptista (Gazoduq) dated 16 January 2021, at Exhibit C-0554; Email from C. Baptista (Gazoduq) to J.F. Bergeron (MFFP) (with attachments) dated 5 February 2021, at Exhibit C-0555; Email from J.F. Bergeron (MFFP) to C. Baptista (Gazoduq) dated 11 February 2020, at Exhibit C-0553; Email from J.F. Bergeron (MFFP) to C. Baptista (Gazoduq) dated 23 February 2021, at Exhibit C-0556-FRA; Email from J.F. Bergeron (MFFP) to C. Baptista (Gazoduq) dated 16 July 2021, at Exhibit C-0551- FRA; Email from J.F. Bergeron (MFFP) to C. Baptista (Gazoduq) dated 20 July 2021, at Exhibit C-0557; Email from C. Baptista (Gazoduq) to C. Le Page (WSP) and J.F. Poirier (UDA) dated 20 July 2021, at Exhibit C-0558. ↩

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communities that would potentially be the most directly affected.⁷⁰⁷ Such engagement efforts included involving Mamo Aki representatives directly in Gazoduq's 2021 field surveys,⁷⁰⁸ and positive discussions regarding Gazoduq's proposals for the Mamo Aki communities' equity participation in (and other financial benefits from) the Gazoduq Project.⁷⁰⁹

491 By July 2021, Gazoduq was in the final stages of its preparations to commence the 2021 field survey programme. WSP had organised a pre- survey training programme for individuals involved in carrying out the field surveys, to be held on 28 and 29 July 2021.⁷¹⁰ However, as explained in the Memorial and further below,⁷¹¹ on 21 July 2021 when the Québec Government announced its refusal to authorise the GNLQ Project, it simultaneously put an end to the Gazoduq Project by declaring that it had “died” with GNLQ.⁷¹²

2.7.2 The Gazoduq project was already substantially de-risked from a commercial, technical, social acceptability and Indigenous relations perspective

492 In addition to challenging the progress Symbio had made towards receiving regulatory approvals for the Gazoduq Project, the Respondent attempts, in the Counter-Memorial, to cast doubt on the viability of the Gazoduq Project from other perspectives. In each case, the Respondent's arguments are contradicted by the evidence. As explained below, Gazoduq

⁷⁰⁷ Roux I, at Exhibit CWS-6, p. 23 et seq. (paras. 90-96); Roux II, at Exhibit CWS-6 (Second), p. 20 et seq. (paras. 53, 64). ↩
⁷⁰⁸ Roux I, at Exhibit CWS-6, p. 24 et seq. (paras. 94-95); Roux II, at Exhibit CWS-6 (Second), p. 20 et seq. (paras. 53, 66). ↩
⁷⁰⁹ Roux I, at Exhibit CWS-6, p. 23 et seq. (s. III.H); Terms of reference and Proposal for an Equity Participation Proposal (March 2021), at Exhibit DR-0025-ENG; Email from D. Roux to Mamo Aki members dated 29 April 2021, at Exhibit DR-0030-FRA; Gazoduq, Presentation for Mamo Aki on the Gazoduq Project dated 29 April 2021, at Exhibit DR-0031-ENG; Email from D. Roux to Mamo Aki members dated 3 June 2021, at Exhibit DR-0033-ENG-FRA, with attachments at DR-0034-ENG/DR-0035-FRA. ↩
⁷¹⁰ Email correspondence between Gazoduq, WSP and Tact Conseil from 7 July 2021 to 14 July 2021, at Exhibit DR-0099-ENG; Internal Gazoduq email from C. Rinfret to C. Baptista et al. dated 19 July 2021, at Exhibit C-0559-FRA. ↩
⁷¹¹ See Section 2.7.3 below. ↩
⁷¹² Memorial, p. 100 (para. 304). ↩

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had demonstrated the viability of the Gazoduq Project from a commercial and technical perspective (Sections 2.7.2.1 and 2.7.1.2), and there were no concerns as to its social or Indigenous acceptability (Sections 2.7.1.3 and 2.7.1.4).

2.7.2.1 The Gazoduq Project was commercially viable

493 First, contrary to the Respondent's assertions, the Gazoduq Project was commercially viable. In his first witness statement, Mr Brintnell explained that Gazoduq had conducted a successful "Open Season" in December 2019, following which GNLQ had formally signed up for pipeline capacity as Gazoduq's major anchor customer.⁷¹³ In addition, Gazoduq commissioned EY to produce a study, which it issued in March 2020, confirming that the Gazoduq Project would be suited to meet estimated demand growth in the natural gas market east of Ontario.⁷¹⁴ Mr Brintnell also explained in his first witness statement that Gazoduq had developed robust financial models for the Project,⁷¹⁵ which had been prepared with the support of Symbio's financial advisors at the time, Société Générale.⁷¹⁶

494 In the Counter-Memorial, the Respondent does not dispute any of the above evidence of the commercial viability of the Gazoduq Project. Instead, it merely speculates that Gazoduq had not received expressions of interest in its pipeline capacity other than from GNLQ, and that, based on that (incorrect) assumption, Gazoduq “n'a pas réussi à trouver d'acheteur” for its residual pipeline capacity.⁷¹⁷ The Respondent's speculation is unfounded.

495 As Mr Brintnell explains in his second witness statement, it was not unusual that GNLQ was the only customer to formally sign up for capacity following the “Open Season”, and it would have been surprising if other

⁷¹³ Brintnell I, at Exhibit CWS-5, p. 13 et seq. (para. 52). ↩
⁷¹⁴ Brintnell I, at Exhibit CWS-5, p. 15 et seq. (paras. 57-59), as corrected in Brintnell II, at Exhibit CWS-5 (Second), p. 23 et seq. (Annex); EY, "Natural Gas Local Market Study" dated March 2020, at Exhibit RB-0019-ENG. ↩
⁷¹⁵ Brintnell I, at Exhibit CWS-5, p. 14 et seq. (paras. 56, 60). ↩
⁷¹⁶ Le Verger I, at Exhibit CWS-3, p. 8 (para. 25); Secretariat I, at Exhibit CER-3, p. 57 (para. 4.57); Gazoduq Model, at Exhibit SEC-0261-ENG. ↩
⁷¹⁷ Counter-Memorial, p. 285 et seq. (para. 709). ↩

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customers had wanted formally to sign up for pipeline capacity at that stage of the development of the Project.⁷¹⁸ In any event, Gazoduq did privately receive informal expressions of interest from communities along the pipeline route who would in the future be interested in receiving natural gas from the pipeline [Redacted] which had also expressed interest.⁷¹⁹

2.7.2.2 Gazoduq had confirmed the technical viability of the Gazoduq Project

496 Gazoduq also demonstrated the technical viability of the proposed natural gas pipeline, as Mr Brintnell explained in his first witness statement.⁷²⁰

497 In the Counter-Memorial, the Respondent acknowledges that the Claimant completed a FEED study for the Gazoduq Project prepared by UPI.⁷²¹ Gazoduq also planned to construct and operate the natural gas pipeline in a manner that minimised its environmental impact. As Mr Brintnell has explained in his witness statements, Gazoduq was already ahead of the curve in terms of utilising the NEB's “Best Available Technologies in Federally Regulated Pipelines" to develop the technical aspects of the Project in a manner that mitigated adverse environmental effects and

⁷¹⁸ Brintnell II, at Exhibit CWS-5 (Second), p. 14 et seq. (paras. 36-37). ↩
⁷¹⁹ Brintnell II, at Exhibit CWS-5 (Second), p. 15 (para. 38); Internal Gazoduq email from R. Brintnell to M. Demers dated 3 January 2019, at Exhibit RB-0035-ENG; Internal Gazoduq email from R Whitwham to M Demers (Gazoduq) et al. dated 4 February 2020, at Exhibit RB- 0033-ENG; Email from [Redacted] to R. Brintnell (Gazoduq) dated 22 January 2020, at Exhibit RB-0036-ENG; Presentation "Le projet Gazoduq" dated 10 February 2020, at Exhibit C-0560-FRA, p. 8; Email from R. Whitwham to L. Bergeron et al. dated 12 February 2020, at Exhibit C-0561-ENG. See also Gazoduq interministerial committee monitoring table dated 9 May 2019, at Exhibit C-0562-FRA, p. 4, demonstrating that the Québec Government (via the Comité interministériel) was aware of two communities (Senneterre and Lebel-sur- Quévillon) were interested in receiving gas from the pipeline even before Gazoduq's "Open Season". ↩
⁷²⁰ Brintnell I, at Exhibit CWS-5, p. 7 (paras. 26-27). ↩
⁷²¹ Counter-Memorial, p. 283 et seq. (para. 705). The Respondent nevertheless requested the Claimant to produce UPI's FEED study in the document production process in this arbitration, and the Claimant has provided it accordingly (see the Claimant's response to the Respondent's document request No. 34 at Procedural Order No. 5. Annex A dated 20 December 2024, p. 101 et seq.). ↩

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promoted safety.⁷²² In a misguided attempt to downplay Gazoduq's technical development of the Project in its Counter-Memorial, the Respondent concedes that Gazoduq's technical efforts were work that “all project proponents undertake", thereby recognising that the Project was well on track from a technical perspective.⁷²³

498 Gazoduq had also committed in February 2021 to net-zero GHG emissions in the operation of its natural gas pipeline,⁷²⁴ which it would achieve by, among other innovations, the use of electric compressor stations that would “set a new industry benchmark in Canada”.⁷²⁵

2.7.2.3 The Gazoduq Project faced no concerns with social acceptability

499 As for social acceptability, the Project benefitted from strong support from the community, Indigenous peoples and the Government.⁷²⁶ As Mr Brintnell explains in his second witness statement, Gazoduq had specifically selected a natural gas pipeline route through uninhabited areas, avoiding major population centres, to avoid issues of social acceptability experienced by a recently proposed oil pipeline, Energy East.⁷²⁷ In the words of one of Canada's own Government officials within NRCan, Gazoduq's approach to community engagement had been “exemplary".⁷²⁸

⁷²² Brintnell I, at Exhibit CWS-5, p. 10 (para. 38); Brintnell II, at Exhibit CWS-5 (Second), p. 5 et seq. (para. 13). ↩
⁷²³ Counter-Memorial, p. 290 et seq. (para. 719). ↩
⁷²⁴ Brintnell I, at Exhibit CWS-5, p. 11 et seq. (para. 42); Gazoduq, Press release, “Gazoduq confirms its intention to aim for net zero emissions", 21 February 2021, at Exhibit C-0046. See also Email from C. Baptista (Gazoduq) to J.F. Bergeron (MFFP) (with attachments) dated 5 February 2021, at Exhibit C-0555. ↩
⁷²⁵ See Gazoduq, Press release, "Gazoduq confirms its intention to aim for net zero emissions", 21 February 2021, at Exhibit C-0046-ENG; Brintnell I, at Exhibit CWS-5, p. 11 et seq. (para. 42). ↩
⁷²⁶ Brintnell I, at Exhibit CWS-5, p. 16 (para. 61), as amended in Brintnell II, at Exhibit CWS- 5 (Second), p. 23 et seq. (Annex). ↩
⁷²⁷ Brintnell II, at Exhibit CWS-5 (Second), p. 9 et seq. (para. 25) and p. 19 et seq. (para. 50). ↩
⁷²⁸ Brintnell II, at Exhibit CWS-5 (Second), p. 12 et seq. (para. 31); Notes of Meeting between Gazoduq and NRCan, at Exhibit RB-0020-ENG, p. 2. ↩