[Page 1]

IN THE MATTER OF AN ARBITRATION UNDER CHAPTER ELEVEN
OF THE NORTH AMERICAN FREE TRADE AGREEMENT

AND

THE ARBITRATION RULES OF THE UNITED NATIONS COMMISSION
ON INTERNATIONAL TRADE LAW, AS ADOPTED IN 1976

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- x

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- x Volume 1

HEARING ON JURISDICTION, MERITS, AND LIABILITY

Monday, March 3, 2025

Calgary Marriott Downtown Hotel
110 9th Avenue SE
Calgary, AB, T2G 5A6
Canada

The Hearing in the above-entitled matter
came on at 9:36 a.m. before:

MS. CARITA WALLGREN-LINDHOLM, President
MR. TREY GOWDY, Co-Arbitrator
MR. TOBY LANDAU KC, Co-Arbitrator

[Page 2]

ALSO PRESENT:

On Behal of ICSID:

MS. GERALDINE R. FISCHER
Secretariat to the Tribunal

Realtime Stenographers:

MS. DAWN K. LARSON
Registered Diplomate Reporter (RDR)
Certified Realtime Reporter (CRR)
Certified Realtime Captioner (CRC)
Larson Reporting, Inc.
2564 West 280 North Street
Hurricane, Utah 84737
United States of America

[Page 3]

APPEARANCES:

Attending on behalf of the Claimants:

MS. MATTI LEMMENS
MR. VINCENT LANCTÔT-FORTIER
MS. MARIANNE BASTILLE-PARENT
Stikeman Elliott LLP
Bankers Hall, 4200 3 St SW West 888
Suite 4200
Calgary, AB, T2P 5C5
Canada

Party representatives:

MR. HAROLD PAUL EINARSSON

[Page 4]

APPEARANCES: (Continued)

Attending on behalf of the Respondent:

MR. MARK LUZ
MS. SYLVIE TABET
MS. JULIA DEUTSCH
MS. ELENA LAPINA
MS. CAMILLE BÉRUBÉ-LEPAGE (virtual)
Trade Law Bureau
Global Affairs Canada
Lester B. Pearson Building
125 Sussex Drive
Ottawa, Ontario K1A OG2
Canada

MS. MOLLY RUMPKE
Core Legal Concepts

MS. DAPHNÉE CAMPEAU
Global Affairs Canada

MR. ALEXANDER BLACK (virtual)
Crown-Indigenous Relations and Northern
Affairs Canada & ISC Legal Services,
Indigenous Rights and Relations Portfolio

MR. PETER WIGEN (virtual)
Canadian Heritage Legal Services

MR. MARK KLAVER (virtual)
Office Legal Services Sector

MR. FRANCO BELLO (virtual)
MS. KIM PHILLIPS (virtual)
MS. JESSICA MACINTOSH (virtual)
MS. JEAN-FRANCOIS ROMAN (virtual)
Natural Resources Canada

[Page 5]

APPEARANCES: (Continued)

Party Representatives:

MR. SÉBASTIEN FOURNIER (virtual)
Crown-Indigenous Relations and Northern
Affairs Canada

MR. SCOTT LITTLE (virtual)
MS. SUSANNA KAM (virtual)
MR. VINCENT BOULANGER (virtual)
Global Affairs Canada

MS. TARA SNELL (virtual)
MS. NATALIE GIASSA (virtual)
MS. PIERRE-LUC RACINE (virtual)
Innovation Science and Economic Development

MS. TIFFANY SANDERS (virtual)
MS. LYNETTE GIBBONS (virtual)
Canada Newfoundland & Labrador Offshore
Petroleum Board

Respondent's Party Representatives:

MR. MARKO VESELY
Canada Energy Regulator

MR. ALEX MILLER
Core Legal Concepts

MR. CHRIS REYNOLDS
Core Legal Concepts

Non-Disputing Parties:

MS. KRISTINA E. BEARD (virtual)
Office of International Claims and
Investment Disputes
U.S. Department of State

MR. ALAN BONFIGLIO RÍOS (virtual)
MS. PAMELA HERNÁNDEZ MENDOZA (virtual)
MR. ALDO GONZÁLEZ ARANDA (virtual)
Secretaría de Economía

[Page 6]

CONTENTS

PAGE

PRELIMINARY MATTERS.................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................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OPENING STATEMENTS

ON BEHALF OF THE CLAIMANTS:

By Ms. Lemmens.................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................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.......................................................................-..28

By Ms. Bastille-Parent.........................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................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By Mr. Lanctôt-Fortier.........................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................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By Ms. Lemmens.................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................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...............................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................-128

ON BEHALF OF THE RESPONDENT:

By Mr. Luz.....................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................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By Ms. Tabet...................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................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By Ms. Lapina..................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................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By Mr. Luz................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................'233

QUESTIONS FROM THE TRIBUNAL................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................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CONFIDENTIAL SESSION.................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................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...............................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................-159-160

[Page 7]

PROCEEDINGS

PRESIDENT WALLGREN-LINDHOLM: Good morning,
everyone.

Apologies for the slight delay in starting
these proceedings. I declare opened this Hearing in
the Matter of an Arbitration under Chapter Eleven of
the North American Free Trade Agreement and the
UNCITRAL Arbitration Rules 1976 between Theodore David
Einarsson, Harold Paul Einarsson, Russell John
Einarsson, and Geophysical Service Incorporated, GSI,
as Claimants and the Government of Canada as
Respondent.

The arbitration is administered by the
International Centre for Settlement of Investment
Disputes, and it is ICSID Case Number UNCT/20/6.

I will now introduce the Members of the
Arbitral Tribunal and its Secretary and the Court
Reporter, and will thereafter ask the Parties' lead
Counsel to introduce their Counsel teams.

So to my right is Trey Gowdy from the United
States of America; to my left is Toby Landau KC from
Singapore -- or England.

[Page 8]

ARBITRATOR LANDAU: Yes.

PRESIDENT WALLGREN-LINDHOLM: Both. Okay.
And myself as the presiding arbitrator, Carita
Wallgren-Lindholm from Finland, and then we have
Geraldine Fischer from ICSID, Secretary of the
Tribunal, and Dawn Larson as the Court Reporter.

Before we proceed to Counsel introductions,
I also recognize the presence of many Party
representatives on both sides, including family
members of the Einarssons.

I further recognize the presence of
representatives of Non-Disputing Parties, namely of
the Governments of Mexico and the USA respectively and
virtually.

Then I will give the floor to Counsel for
Claimants to introduce their team.

(Interruption.)

MS. LEMMENS: Thank you, Madam Chair for
that introduction. I am Matti Lemmens, lead Counsel
for the Claimants. I have with me my team from
Stikeman Elliott who represents all of the Claimants
in this matter. I have next to me Kira Lyseng,

[Page 9]

Vincent Lanctôt-Fortier, Marianne Bastille-Parent.

Additionally I have with us this morning
members of PwC who are -- who prepared the Damages
Expert Report on behalf of the Claimants. So I have
Paul Sharp of PwC. We'll probably be mindful that you
have seen that name before, and his associate Mike
Dutka is with him.

Additionally we have one of the Claimants in
the room, Paul Einarsson. We have his wife and his
son.

PRESIDENT WALLGREN-LINDHOLM: Thank you,
Ms. Lemmens.

And Counsel for Respondent?

(Comments off microphone.)

MR. LUZ: Madam Chair, Members of the
Tribunal, thank you very much. My name is Mark Luz,
and I have with me Canada's legal team. Next to me is
Ms. Sylvie Tabet, Julia Deutsch, Elena Lapina, and
then we have our Paralegals Benjamin Tait, James
Adams, and I think Grace Mutombo is back
there -- yeah, as well. So that is Canada's legal
team.

[Page 10]

We also have representatives from our client
group and our Technical Team, and I am seeing a few.
Marko Vesely is here representing the Canada Energy
Regulator, formerly the National Energy Board. And I
think that's the extent of our team.

PRESIDENT WALLGREN-LINDHOLM: Thank you very
much, Mr. Luz.

Before we proceed any further, I would like
to address one thing, and that is the presence of
witnesses in the room or virtually at this stage to
confirm that they are all such that they can sit in as
of now. And if we take the list of witnesses, I think
we have Paul Einarsson and he can sit in because of
the Regulation.

I'm just trying to find my PO11 here. Here
we go. He can sit in under PO11 Paragraph 12.14, and
then we have the persons from Canada, Mr. Dixit,
Makrides, and Bennett, and they are remote, at least
one of them, and I would like to understand what the
Parties have intended in their Regulations saying
that, unless agreed otherwise, factual witnesses shall
not be present in the Hearing room during the hearing

[Page 11]

of oral testimony.

Does that mean that they can be present
during the Openings?

MR. LUZ: It does mean that they are able
to, but I don't believe any of our witnesses are
actually present for the Opening Statements.

PRESIDENT WALLGREN-LINDHOLM: Yeah. Good.

So we don't need to monitor this further at this
stage?

MR. LUZ: No, Madam Chair.

PRESIDENT WALLGREN-LINDHOLM: No. No.
Okay. Very good. Because this was not our drafting,
and, therefore, we were seeking the intention behind
the wording.

We will deal with sequestration separately
in relation to witnesses, but the Counsel are already
as of now invited to monitor the implementation of
sequestration rules when they become topical.

And, just for the sake of order, we assume
that Experts can sit in without limitation; right?

MR. LUZ: Yes.

PRESIDENT WALLGREN-LINDHOLM: This is --

[Page 12]

MS. LEMMENS: We can confirm that, yes.

MR. LUZ: Canada as well.

PRESIDENT WALLGREN-LINDHOLM: Yes.
Canada as well.

Now, when it comes to access to Confidential
Information, we have discussed that at some length.

May I ask then that Counsel before addressing any such
information give an indication so that the Zoom
manager can turn off access during presentation? I
believe there's nobody that needs to leave the room at
such point, is there? We try to study the lists up
and down, and came to the conclusion that no.

MS. LEMMENS: Not that I'm aware of. I just
don't know who the individual is at the end of
Canada's table, so maybe that can get clarified.

PRESIDENT WALLGREN-LINDHOLM: That can
certainly be clarified.

MR. LUZ: It's Chris -- I'm sorry, I'm
drawing a blank on his last name -- from Core Legal.
He's our technical person that's going to pull up
slides and exhibits so that I don't have to try and
click at the same time. So apologies for not

[Page 13]

introducing him.

PRESIDENT WALLGREN-LINDHOLM: Okay. And we
have gotten the USBs. But there is one more thing as
a household matter that we wanted to raise and that
is, it is not uncommon in proceedings of this kind
that we provide that private audio or video recordings
are not allowed, and I would like for the Parties to
comment on this, whether this is something that we
should set as a rule now.

MS. LEMMENS: I think we should set it as a
rule because we have a proper recording and we have
Dawn Larson here who is taking the stenography for
these proceedings.

PRESIDENT WALLGREN-LINDHOLM: And also a
detailed Regulation of how these proceedings become
public. Okay? And --

MR. LUZ: Agreed.

PRESIDENT WALLGREN-LINDHOLM: Agreed. Good.

MR. LUZ: And Madam Chair, I just
remembered. It's Chris Reynolds from Core Legal. So
I apologize for blanking on his last name, who is
controlling all of our technical stuff.

[Page 14]

PRESIDENT WALLGREN-LINDHOLM: I will not
comment further. I will say thank you.

The schedule, it stands for now, as it was
appended to PO11. And is there anything in the purely
household -- on the household side that I have
forgotten?

(Comments off microphone.)

PRESIDENT WALLGREN-LINDHOLM: No? Not even
you? No.

Then I would like to ask the Parties if
there are any matters that they would like to raise up
front before we proceed to the Opening Statements. We
are aware that Canada wishes to address the Amended
Sharp PwC Report, or at least it indicated an
intention to address it at the commencement of the
proceeding.

MR. LUZ: If I may. Thank you, Madam Chair.
As the Tribunal is aware, on Friday afternoon, the
Claimants sent, without warning to Canada or
permission from the Tribunal, an amended Expert Report
from Mr. Sharp of PricewaterhouseCoopers. As we -- as
would be expected, a surprise filing of this Amended

[Page 15]

Report has already caused prejudice to Canada, not
only in preparing for the first day of the Hearing,
but upending Canada's preparation for
cross-examination for Mr. Sharp as well as Brattle's
preparation for their presentation next week.

Needless to say, Canada objects strongly to
this last-second Submission. Claimants purport to
rely on Procedural Order Number 13, Paragraph 13.3(g)
to justify it, but I believe the Claimants have
misread the Procedural Order because all it says is
that every Expert Report shall contain a Statement
that, if the Expert considers a correction,
modification, or qualification is necessary,
notification shall be made to the Tribunal and
disputing Parties forthwith.

There is nothing in the Procedural Order
that gives carte blanche for an Expert to file without
warning or permission from the Tribunal a
substantively Amended Report that was originally filed
almost three years ago.

It is also all the more surprising that many
of the issues that are allegedly corrected in this

[Page 16]

Amended Report were things that Canada raised along
with the Brattle Report in our Counter-Memorial in the
Brattle's First Report in 2023.

We are also in the position that we can't
check the new Report for correctness because the
Claimants still have not provided electronic work
papers, and we are really just not going to have much
time to address the Amended Report before next week
because we are obviously fully occupied with this
week's proceedings.

What the Amended Report essentially does is
show that the Claimant's entire approach to damages
has no credibility, but the fact remains that there is
prejudice that should not be countenanced.

Now, that said, Canada does intend to
cross-examine Mr. Sharp on the changes that he's made,
but we do request that the Tribunal allow Canada to
make further submissions on damages afterwards, if
necessary, and we also ask that Brattle,
our -- Canada's Damages Experts be given an additional
15 to 20 minutes during its presentation next week in
order to address the implications of the amended

[Page 17]

Report.

Thank you.

PRESIDENT WALLGREN-LINDHOLM: Thank you,
Mr. Luz. Can I just get clarified, when you say
"afterwards," it means after what point in time?

MR. LUZ: It could mean in a Post-Hearing
Submission.

PRESIDENT WALLGREN-LINDHOLM: In a
post-hearing.

MR. LUZ: If -- if that's necessary. Again,
we haven't really had time to absorb the Report that
has been sent.

PRESIDENT WALLGREN-LINDHOLM: I understand.
But you are not proposing to submit it before these
Experts are heard, but it would be after the closure
of the Hearing?

MR. LUZ: That's right, Madam Chair.

PRESIDENT WALLGREN-LINDHOLM: Okay. Thank
you very much.

Ms. Lemmens?

MS. LEMMENS: Perhaps if I could just ask a
clarifying question of my friend on the other side.

[Page 18]

When you say "submissions" are you talking
about written submissions or an additional Expert
Report?

MR. LUZ: It could be either. I think we
need some time to think about it, but we are going to
cross-examine Mr. Sharp on the Amended Report next
week.

PRESIDENT WALLGREN-LINDHOLM: Thank you
very --

MS. LEMMENS: Thank you.

PRESIDENT WALLGREN-LINDHOLM: Oh. Sorry.

MS. LEMMENS: Yeah.

PRESIDENT WALLGREN-LINDHOLM: Thank you. We
will discuss what we've heard now during one of the
breaks. And -- I beg your pardon?

(Comments off microphone.)

PRESIDENT WALLGREN-LINDHOLM: Pardon me?

ARBITRATOR LANDAU: I just -- it would be
helpful to have the Claimants' response, if there is
any, to what's just been said.

PRESIDENT WALLGREN-LINDHOLM: Okay. Sure.
I'm sorry.

[Page 19]

(Interruption.)

MS. LEMMENS: Thank you. Thank you, Madam
Chair, and Mr. Landau, because we do actually have a
response, and I'm glad to hear that we are not talking
about whether there is leave to submit the Report
because it was unclear to us whether that was the
objection or whether we were dealing with something
different, which it sounds like we are.

We just wanted to note that PwC in its
Report actually had clarified that it reserved the
right to amend its Report, should its conclusions
change based on differing information. We also note
that PwC has a duty to amend its conclusions under the
PwC as these individuals are located in Calgary.

They operate under the Canadian Chartered
Business Valuator Standards, and those Standards also
require an amendment to be made in writing if their
conclusions, being the quantums, would change. So
they weren't able to just simply attend the Hearing
and then disclose new numbers as corrections to their
Report.

Probably no one has had a great opportunity

[Page 20]

to review the Amended Report, but what we tried to do
is highlight with red underlining in the Report what
had changed. The methodology has not changed, and
the -- so the regression analysis that was conducted
by PwC has not changed.

It is some of the input numbers to the
normalized revenues that did change and then resulted
in different numbers, and you'll see that there's an
explanation, both on the cover page of the Amended
Report and, additionally, the two new Schedules that
you find at Schedule E-1 and E-2 of the Report are the
totality of the new inputs. And you'll see that they
are very short Schedules. So I just wanted to make
that clear and maybe that assists Canada in being able
to address the amendments.

We also note that we are of the view that
Canada has actually created some of this situation
itself.

Brattle's Second Report went beyond the
scope of a typical Rejoinder. It raised new issues
for the first time about documents that they had from
the first time that they had done their First Report.

[Page 21]

So specifically they raised new issues about
Exhibits C-111 and C-112. They have had that from
prior to their First Report, but they raised issues
about it, new issues, in their Second Report. And so
we would say that fairness dictated that, in fact, we
should have had an opportunity to respond to those new
issues.

As the Panel would know, a Rejoinder
Report -- it's intended to be limited to just
responding to issues in the Reply Report of PwC, but
that is not what happened is what I'm trying to get
across there.

Canada certainly shouldn't be saying that it
was taken by surprise, by any means. These are all
related to issues that were raised by their own Expert
in their own Expert's Second Report, so they should be
familiar with the issues. They're not new, novel
issues that PwC has raised on its own accord outside
of just responding to the Rejoinder Report. And we
note that PwC, its amendments resulted in a quantum
downwards of approximately $100 million, which is in
Canada's favor, and I would think that they would be

[Page 22]

happy to see a revision downwards. It's certainly not
upwards.

So, in our view -- and I'm glad to hear that
Canada is not opposing it -- the fairness does weigh
in favor of permitting PwC to present its amended
Report. With respect to whether we have following
Expert Reports, I only note that, because it was a
response to Brattle's Rejoinder Report, I wouldn't
think that we'd need to have additional Expert Reports
thereafter, but perhaps Canada hasn't been able to
formulate a position in clarity just yet because they
are -- they were traveling to Calgary for this
Hearing.

And so, perhaps what we do is we reserve how
we would deal with that until maybe later in the
Hearing just so that we know that that is, in fact,
Canada's position that it would like to have some sort
of additional potential Expert submission. We have no
problem with also addressing it in written closing.
That's not an issue, of course. I just worry that, if
there is additional Expert Reports that then, perhaps,
we need to have additional cross-examination and we

[Page 23]

would have already started cross-examination. It
starts to get a little bit messy in terms of how those
Expert Reports would look and whether they would
retread on ground that they have been cross-examined
on already. We would view that as unfair.

PRESIDENT WALLGREN-LINDHOLM: Thank you,
Ms. Lemmens.

Do you wish to comment further, or shall we
proceed?

MR. LUZ: I would. I probably have a good
15-minute speech to be able to respond, but I'll keep
it very brief.

There was nothing said by the Claimants
about how a supposedly corrected Report could be
submitted the Friday before the Hearing starts when
they have had Brattle's Report since November and how
that could be submitted without permission from the
Tribunal or even any kind of advance notice to Canada
that they would be doing this. I think it will become
fairly obvious, if it isn't already, that the excuse
that the Claimants have made that this was a reply to
so-called "new issues" that came up in Brattle's

[Page 24]

Rejoinder Report is not true. This was a creation of
Claimants for not having appended any of the evidence
that supported its underlying damages analysis, and
I'm thinking in particular of Exhibit C-112, which the
Claimants submitted a chart with its Memorial and
Mr. Sharp's First Report and none of the evidence
supporting it.

So it's not appropriate to sort of shift the
blame to Canada for bringing up issues which the
Claimants themselves brought up.

I won't say much more about that, but I
certainly will say that it would be entirely unfair
for the Claimants to benefit from submitting an
amended Report the Friday before the Hearing and then
not allow Canada to be able to respond to that in
writing if we deem necessary. We're certainly not
interested in having a whole other round of
submissions, but the Claimants should not be able to
benefit from submitting an amended report in this way
and then not giving Canada the opportunity to properly
respond to it thereafter. I'm not saying we're going
to in a lot of detail, but it is something that we ask

[Page 25]

the Tribunal to keep in mind and will reserve
our -- the specifics on that after the
cross-examination with Mr. Sharp.

PRESIDENT WALLGREN-LINDHOLM: Mr. Landau
wants to ask a question.

ARBITRATOR LANDAU: Sorry. Just very
quickly. You had suggested two procedural
accommodations: One was the possibility of further
submissions, which has been addressed. The second one
was the possibility of an additional 15-20 minutes to
Brattle. Is that to extend their presentation? Is
that where that comes?

MR. LUZ: It is. The Procedural Order
allows Damages Experts 30 minutes in which to be able
to present, but, just given the last-minute nature of
this, I think it's only fair and appropriate to give
Brattle a little bit extra time to be able to address
this, just given that we're going to have to --

ARBITRATOR LANDAU: I see. Thank you.

PRESIDENT WALLGREN-LINDHOLM: Ms. Lemmens,
did you address that in your comment? I don't think
so.

[Page 26]

MS. LEMMENS: No, I didn't, but I think PwC
would like to also have an additional few minutes to
explain how they arrived at an amended report, if
that's going to occur. Certainly, we're not trying to
be unfair about it, and I don't know if you wish to
hear some comments in response to Mr. Luz's comments
about evidence not being provided. It's very clear
that the Brattle Report relies on Exhibits C-111 and
C-112 in making new issues in its Second Report. So,
just as fairness is being called upon by Mr. Luz on
behalf of Canada, fairness is also being called upon
on our side, and that's why there is an amended
report.

PRESIDENT WALLGREN-LINDHOLM: Thank you.

If there is nothing further, I will just
say, before we proceed to the Opening Statements, I
will thank the Parties for all arrangements and also
for the welcoming snow making me feel right at home.

So can we have the prints of the Opening
Statements? We have asked for printed Opening
Statements.

(Comments off microphone.)

[Page 27]

MS. LEMMENS: Ms. Lyseng is just providing
those to you at this time. I believe we also emailed
them at 8:30, and hour before we started today. And I
believe, in Ms. Lyseng's email, it noted that there is
a little bit of Confidential Information contained in
the PowerPoint presentation. I don't think that the
oral -- the oral submissions that correlate with that
PowerPoint will contain much of any Confidential
Information, so I don't think we're worried there.
But, obviously, we can look at the Transcript
afterwards. I've tried to not include that in our
Opening Statement, but it is in the PowerPoint.

PRESIDENT WALLGREN-LINDHOLM: I understand,
and if there is something, you will then alert us to
that in arrears; right?

MS. LEMMENS: Yes. So in the
PowerPoint -- you'll probably notice it. It's a
little bit about Mr. Einarsson's nationality.

PRESIDENT WALLGREN-LINDHOLM: Yes, I see it.

MS. LEMMENS: And then there is some Seismic
Data just so that I could provide you with an example,
but those are the items I'm thinking of in terms of

[Page 28]

what was confidential in the PowerPoint.

PRESIDENT WALLGREN-LINDHOLM: Understood.
Okay. Thank you.

So we will then leave the floor to Counsel
for Claimants.

MS. LEMMENS: Ms. Fischer, I'm not sure, are
you operating the connection to the screens in the
room so that we could put our PowerPoint up, or is
someone else? Sorry.

(Comments off microphone.)

MS. LEMMENS: Do you have a preference of
whether I stand or I sit?

PRESIDENT WALLGREN-LINDHOLM: It is your
choice.

MS. LEMMENS: Okay. I would normally stand
in court, but I don't have a lectern so it's a little
bit awkward.

PRESIDENT WALLGREN-LINDHOLM: That is fine.
Thank you.

OPENING STATEMENT BY COUNSEL FOR CLAIMANTS

MS. LEMMENS: Thank you.

So to start this Arbitration, we intend to

[Page 29]

provide an overview of the Claimants' case. In that
overview, we will retread over the Claimants' Memorial
and Rebuttal Memorial and provide some further color
to the case, as you would expect in an Opening
Statement. I'm going to set the stage on behalf of
the Claimants, speaking about the facts of this
matter, and then I will turn it over to my colleagues.
Marianne Bastille-Parent will speak to jurisdiction
and Mr. Vincent Lanctôt-Fortier will be speaking to
the Merits and damages, and then I will conclude our
Opening Statement.

So, as we all know by now, on April 21,
2016, approximately nine years ago, the Court of
King's Bench of Alberta, just a few blocks down from
here, issued a Decision in what we had called the
"Common Issues Trial." In that Decision, it told GSI
that it could not enforce its copyright in its
valuable Seismic Data. No compensation would be
payable for that confiscation of its valuable rights.

The Decision reads, at Paragraph 322,
that: "The Regulatory Regime has confiscated the
Seismic Data created over the offshore and Frontier

[Page 30]

Lands and the CPRA is not apologetic for it, indeed,
it makes clear that there is no compensation for any
confiscation under the Act at Section 111(2)."

That finding became final on November 30,
2017, when Canada's highest court, the Supreme Court
of Canada, denied GSI's Application for leave to
appeal.

The Courts have crystallized Canada's
expropriation of GSI's most valuable asset. It left
GSI unable to enforce the copyright, and that
ultimately destroyed its business, that same business
that had laid the foundation for the offshore Canadian
oil-and-gas industry.

The Claimants, Theodore David Einarsson,
Harold Paul Einarsson, and Russell John Einarsson are
a father-and-son team of American investors in GSI,
the other Claimant in this matter. GSI was once a key
player in the Canadian offshore oil and gas
exploration industry, the one that oil-and-gas
companies knew and trusted and had come to rely upon
for the secrets as to where the oil and gas is.

The Einarssons are here today to simply seek

[Page 31]

their just compensation in this Arbitration. They
have been substantially deprived of their investments
in breach of NAFTA Chapter Eleven.

The Claimants will demonstrate to this
Tribunal that the Tribunal has jurisdiction to hear
the Claimants' Claims, that the Canadian court
Decisions breached Articles 1110, expropriation, and
1106(1)(f), illegal performance requirement of NAFTA,
and that Canada has to pay the Claimants for its
breaches of Chapter Eleven of NAFTA as set out in the
amended Report of PwC.

Canada will attempt to persuade this
Tribunal to find against the Claimants, to find
against them on jurisdiction, and the reason that
Canada focuses there is because it has weak defenses
on the Merits. But its challenges to jurisdiction, we
submit, are equally weak. Canada has misstated facts.
It attempts to reargue the Alberta Decisions on points
that the Alberta Decisions have already determined
against Canada. They have embellished issues such as
the waiver issue under Article 1121 of NAFTA, and they
have incorrectly applied international legal

[Page 32]

principles regarding Limitation Periods and
nationality.

Canada does not deny that it benefits from
the Alberta Decisions. Canada collects billions of
dollars in royalties from its offshore oil-and-gas
industry and has done so for years. Canada is simply
trying to get out of paying GSI the just compensation
that it deserves and it does so through a bunch of
technicalities that it raises in this proceeding.

We submit that Canada fails to establish any
of those defenses.

So let's talk about the facts in more
detail, and you're going to hear more about them in
the next two weeks, Tribunal. These were set out in
some detail in our Witness Statements from Paul
Einarsson, Davey Einarsson before he passed away,
Russell Einarsson, Ralph Maitland, George Lau, and
Allan Feir. I think we have a list of the -- just
bear with me.

Canada has elected to only cross-examine
Paul Einarsson in this Hearing. The other Witness
Statements, though, are equally important to the story

[Page 33]

here. As we all know, Davey was the founder but
passed away last year. Russell was involved in the
Seismic industry for decades. Ralph Maitland explains
how scanning began to occur here in Canada and was
unknown to seismic companies like GSI. George Lau was
a former employer of what we call "Delaware GSI," who
created some of the Seismic Works at issue. Allan
Feir worked for the Claimant, the current GSI, also
creating some the Seismic Works of GSI. And we also
had a Seismic Industry Expert, Chip Gil. Canada did
not call him as a witness during this Hearing, and,
yet, he was the President of the seismic industry's
leading association at much of the relevant and
material times at issue here.

These are very important pieces of evidence
that Canada is, we say, attempting to downplay before
the Tribunal by not calling them as witnesses during
this Hearing.

So, as I said, there are four investors that
we speak about in this Arbitration. You have now the
estate of Davey Einarsson, who was the founder of GSI;
we have Paul Einarsson, the current CEO and President

[Page 34]

of GSI; we have Russell Einarsson who was the former
Vice President of one of GSI's affiliates in Texas;
and we have GSI itself.

The Einarsson family has been involved in
the Seismic Data industry since the 1950s. Davey was
a pioneer in this field. He graduated in 1956 and
immediately went to work for Delaware GSI in 1956.

That company was incorporated in Delaware in 1938.
That company went on to be renamed Texas Instruments
in the 1950s. You may have heard of them related to
calculators, but, before they were into calculators or
any sort of warfare equipment, they were actually a
seismic industry business alone.

So -- and they then renamed in the 1950s.

Due to their expanding business, they continued to
maintain the Seismic Data industry arm as one of their
departments for decades to follow until it sold its
Seismic Data business to Halliburton in 1989. Russell
joined his father in the marine Seismic Data industry
from 1992-2013. During that time, he acted as a Vice
President in Houston, Texas. And the GSI that is the
Claimant today was incorporated in Canada in the

[Page 35]

1990s.

In 1993 and 1994, through a series of
transactions, Halliburton sold its Canadian Seismic
Data collection to GSI. That's not the totality of
the Seismic Works. I just want to be clear. So there
is an older set of data that came from Delaware GSI
pre-1993, and then additionally GSI, the current
Claimant, created more Seismic Works, and that is the
totality of the Seismic Data collection.

The Seismic Works and GSI's intellectual
property rights therein were the life blood of GSI's
business. Throughout the 1990s and 2000s, the Seismic
Works allowed GSI to generate substantial revenues
that it reinvested in its business year after year.

It purchased seismic vessels and a processing center,
and that allowed it to create further Seismic Works
quickly and relatively cheaply because it controlled
all of the aspects of creating Seismic Data.

In the early 2000s, GSI employed
approximately 250 people. Paul Einarsson, he did a
brief stint on seismic vessels in the 1980s, but he
began to work in earnest in the industry in 1997.

[Page 36]

That is when he relocated from California to this
city, Calgary, to assist his father, Davey, in
supporting and growing GSI.

For the Tribunal's benefit, Calgary, Canada
is essentially the Texas of Canada. This is where the
oil-and-gas industry, its heart, is located. All of
the major oil-and-gas companies would operate out of
this city.

So given that Paul's nationality is
contested in this case, I'd like to just take a little
foray into his nationality at this point, and then
I'll come back to speak more about some of the other
interactions with the Government.

Paul was born in Libya in 1964, born in
Tripoli. His dad was stationed there for Seismic Work
at that time. Davey had met an Italian-Egyptian woman
whom he married, Gina, and he settled into family
life. So he started to have his children.

Paul was in Libya with his parents. Russell
was born shortly thereafter, only 1965, so only a year
later, and they were there when Muammar Gaddafi rolled
his tanks into Tripoli during a military coup when

[Page 37]

they were living there. They put up with that regime
for another couple of years, and then -- before they
left Libya in 1971, after it became clear that Gaddafi
was entrenched in power there.

In 1971, Davey moved his family to this
city, Calgary. As I said, it was the heart of the
oil-and-gas industry at that time. It still remains
so. And so this was the place to go for Davey because
he was born in Manitoba. So this was an easy move for
him.

They stayed here only a short while, from
'71 until 1975, when they resettled in Texas. So at
that time, Paul was approximately 11 years old and
Russell was 10 years old. They spent their
formative years in Texas. Paul was technically Libyan
by birth, so was Russell, until Paul, at least
naturalized to American citizenship in 1990. He went
to grades 5 through high school, grade 12, in the
United States, and he continued to live in the United
States thereafter until 1997 when he relocated to
Calgary to assist in growing GSI's business here.

Paul went to the University of Texas at

[Page 38]

Dallas. He obtained an undergraduate in 1986 from
that university, and he obtained an M.B.A. from the
Southern Methodist University in 1988. That's also
down in the United States.

He met his wife during his post-secondary
studies in Texas. She's originally from Los Angeles,
or LA, California. Paul and his wife were married in
1989 in Dallas, Texas. Their first marital home was
in Dallas. They owned it from 1988 until 1995. Both
of their children were born there.

They resided in California then, from late
1995-1997. Davey -- sorry, Paul was working in
finance at that time, given his university education.

In 1997, his father, Davey, had asked Paul
to relocated with his family to the business hub here
in Calgary to support and grow GSI's business. At
that time, he understood that he would reside in
Calgary for only a few years to support the business
growing, after which he would leave it as a
well-established business here in Calgary running on
its own.

Paul's family moved here in 1997. During

[Page 39]

their time in Canada, Paul and his family frequently
traveled back to the United States. That's where
their families were. That's where their friends were.

In 2004, Paul purchased a farm location on the way out
to the mountains from here. He uses that to store the
Seismic Works. GSI was legally required by the
Regulatory Regime to maintain its offshore Seismic
Data within Canada or risk surrendering it in full to
Canada.

And I just point you to -- in our
presentation here, I have the Canada Oil and Gas
Geophysical Regulations at Section 39. And I just
want to make the point here. It says: "Every
Operator shall, after completion of a geophysical
operation, retain in Canada the Seismic Data."

At (4) there, it says: "No person shall
destroy, discard, or remove from Canada any of the
information or material," and at (7), it says: "Every
Operator shall retain in Canada on reproducible film
the most recent fully processed, migrated, seismic
sections of the geophysical operation and shall not
destroy that film or remove it from Canada without the

[Page 40]

written approval of the Chief Conservation Officer."

You are going to hear from Mr. Dixit, who
was the Chief Conservation Officer. He has since
retired. But what that essentially means is that GSI
is forced to continue to maintain its Seismic Data in
Canada or risk completely surrendering it to Canada.

If it ever wanted to leave, if it ever wanted to move
the Seismic Data down to Nevada where Paul lives now,
he wouldn't be able to do that without asking for
permission to do that. So that is why there continues
to be a farm here in Canada where the Seismic Works
are stored, and, of course, GSI has to do that on its
own dollar. It's not getting any funding from Canada
to do that, and it's no longer got a business. So
currently, that is being maintained by the Einarssons
on their own money.

So Canada even controls the location and the
maintenance of GSI's Seismic Data, even today.

In October 2006, Paul's family decided to
move back to California for at least the winters. As
you can see, it snows here, and Paul's wife, being
from Los Angeles, California, I don't think loves the

[Page 41]

weather here. So I think she was eager to move back.

They engaged with GSI's CFO at the time for tax-planning purposes on how to leave Canada.

Shortly thereafter, they engaged a realtor in California to assist them with finding a permanent home there and, unfortunately, due to the Global Financial Crisis in 2008, they could not proceed with the closing on that home. They made an offer, but they could not complete.

Their intention to go back to the U.S. never went away, though. In 2011, they finally purchased a home in San Diego, California. From 2011 to 2016, Paul resided, approximately, 45 percent of each year in the U.S. and another 10 to 20 percent of the year traveling to see relatives in other countries.

This is a fairly international family to some degree. They have family in Australia. They have family in Italy. And they have family in Iceland. So they went to visit their family members in all of those different countries regularly, leaving Canada.

From 2013, Paul's family continued to make

[Page 42]

arrangements to sell their family home in Calgary.

The Einarsson homestead in Arborg, Manitoba, and some other commercial buildings were ultimately sold. The homestead in 2013 and their commercial building here in downtown Calgary, they sold in 2015. Despite it being a tough real estate market in Calgary in 2015 and 2016, they were able to finally sell their home in Calgary in September 2016.

Shortly after that, they filed a joint departing tax return, Paul and his wife, and they left with an effective departure date of January 1, 2017.

On February 27, 2017, they purchased their principle residence in Nevada. They resided there ever since. They still reside there today. They flew in just last week just for this proceeding.

Paul has always been, and remains, an American, first and foremost. You will hear from him and you will see it yourself when he testifies before you in this Hearing. He identifies as an American. He's quite patriotic to the United States. It is where he spent his formative years, so that is not surprising.

[Page 43]

In 1990, he applied for his American citizenship through naturalization, rather than claiming it based on his father's citizenship. His father had both Canadian and American citizenship by way of his birth, given where he was born in Manitoba. But his mother was actually from the United States, and so he had a birth right to citizenship. And, therefore, Paul Einarsson did, as well.

He has, of course, developed some social connections and work connections here. I met Paul through work many years ago now. And I would call him a friend, but I only see him when he's in town for his court cases or this proceeding. So he's not here very often.

While they lived in Canada, they used to travel to the United States, as I said, to visit their relatives. Both Paul and his wife have aging parents. Paul's, of course, have now passed away. They were in Texas. His mother and father were in Texas, and his wife's parents were in Florida. His mother-in-law is still there.

They attended family reunions for Christmas

[Page 44]

and for American Thanksgiving. Their kids went to University in the United States. One is now married and lives in Australia, and the other one that is with us today at this Hearing is married and living in the United States at this time.

Since 2012 when they purchased the home in San Diego, Paul's time in Canada, of course, became more limited. They had a landing spot in the U.S. that they liked to be at more than they liked to be here.

Paul's intention to go back to the U.S. is also evidenced by his investment-related decisions. He maintained almost all his bank and investment accounts and properties in the U.S. in Pearland, Dallas and Napa.

The only remaining asset, as I mentioned, is the farm with the Seismic Works. He also has always paid taxes in the United States, even while he lived in Canada. Any additional Canadian taxes were actually paid by GSI because GSI had relocated him here for its business. And so I will have my colleague Marianne Bastille-Parent speak to the law

[Page 45]

with respect to his nationality in due course.

I want to talk a little bit about what Seismic Data is because there is not a lot of it in the record before this Tribunal. And so I imagine that it is probably a little bit esoteric for the Tribunal to understand what this is all about at this time.

It is a really confidential piece of information, and that's why you don't actually see it in the record before the Tribunal. And you also -- you know, if you took to the Internet to try and Google it, you don't see a lot of it on the Internet either for good reason. This is a very secret piece of information.

Seismic Data shows the layers of geology under the Earth's surface. So the land that you walk on is the surface, and under that is what we are talking about. So as you may recall from science class many years ago, there are sedimentary layers under the Earth's surface. And it's that that we are talking about in Seismic Data. That is the visual that you see in Seismic Data.

[Page 46]

It is used by the oil-and-gas industry to identify the areas of interest for exploration, development, and production of hydrocarbons. So of interest in this present case, the Seismic Data collected by GSI was mainly located off the shores of Canada.

And so, I think, we've got the -- this is a map from Mr. Dixit's Witness Statement. You can see on the screen, where you see the pink and green -- it doesn't really matter for my purposes right now whether it should be pink or green -- but all of those areas are where you see Seismic Data offshore of Canada.

So we see it offshore on the east of Canada.

So you will see Nova Scotia would be towards the southern part of the East Coast of Canada. Newfoundland and Labrador, you will see a large green patch there. That is where Newfoundland and Labrador are located. You get up towards Greenland and Baffin Island -- and then on this other side here, closer to where you would see Alaska, that is the Arctic or Beaufort Sea area.

[Page 47]

You may see references to all of those areas in the materials. So I just wanted to make sure that you understood where those areas were located.

Collecting Seismic Data offshore is no small task. I want to give you a little bit of a physics lesson, so that you understand how Seismic Data is created offshore.

This image here is taken straight out of the Trial Decision in the Alberta Decisions. It is at Paragraph 48, and it had come out of the one of the Expert Reports that was tendered at that trial.

So although the integrity of this image when I blew it up on the PowerPoint isn't perfect, I will sort of walk you through it because I think you can still see the visual.

You see that there is water. That's the blue there in the image. You see a Seismic vessel. It says "survey ship" there that is floating along on the water. And it is dragging something behind it. You can't read it very well, but it says "source of shock waves [air gun]."

So the air gun is the Seismic source. And

[Page 48]

you're probably wondering what the heck does that mean? So that is something that emits waves of energy down into the water. And those waves, like sound waves, ultimately get reflected off of the numerous layers under the geology and they reverberate back up to the water surface.

And then there's a long cable that gets dragged behind the same vessel. And that cable has, essentially, the equivalent of a bunch of phone receivers on it that collect the sound waves on the back.

And, based on the information about how long it takes for that sound wave to bounce back up, is how you create the image that you see in Seismic Data.

And I have an image in a moment here. So you can see they are called "hydrophones," but that's the same thing that you could think of as a phone receiver, obviously different technology, but same process or idea.

And so you see down there -- you see the seabed at the brown layer, and then you see different sedimentary rock layers below. So you can see that

[Page 49]

the different energy waves actually hit those different rock layers at different times, and that causes them -- they sort of spray out from the source there, and then they bounce back at different locations on the cable behind the ship. So you can see, I think, there is four different examples of shock waves.

And so that's how we create that image. It is not unlike what you may see in an ultrasound when you have a baby in an ultrasound. So ultrasound waves are sent through the body, and they end up reflecting off the things inside the body. And that's how they create the image of the baby in the person's body. That might be something that is more familiar to the Tribunal in terms of what you have seen before.

A Seismic Operator goes out and it plans where it's going to shoot one of these surveys. It says this might be an area of interest. I think that, you know, maybe there's an Exploration License bid being had in that area coming up, maybe it knows that the geology in that area looks interesting. So it goes and figures out, I want to go and make Seismic

[Page 50]

Data in this particular area --

And then it has to think about what kind of air gun or Seismic source it going to use. There are different varieties. And then it has to think about how long its cables are going to be behind the ship. They have to think about how frequently these hydrophone receivers are going to be along the cable. You might not have them spaced in the same way, depending on the geology, the depth of the ocean, that sort of thing.

And so there is a lot of things that go into just simply creating a Seismic survey out in the field. But then you have to take all of that information back to the processing center where you have geoscientists. These are geophysicists. They are geologists. That are specifically trained on how to reduce the noise that the ocean -- not literally the things that we hear in our ear, but the noise that is created by other energy waves that interfere with the waves coming back that we want to hear in the hydrophones.

So you might get turbulence in the water.

[Page 51]

We don't care about that because we care about only knowing about the geology below the ocean floor. So you actually have to have skills that I don't have. Certainly, I'm not a geoscientist. But they are able to determine through repeated information in the Seismic survey what is the most likely location of the sedimentary layers and what is maybe, perhaps, a sound that is coming from something else that doesn't matter to us.

And that's why you can have data get reprocessed. When it is reprocessed, other geoscientists are looking at it and saying, "Well, actually, I think that maybe if I did something a little bit different, I would get a different image and it would look a little bit different." So reprocessing Seismic Data actually creates a different visual. It will not create the same visual.

So when we talk about the information that comes from out in the field, we call that "Field Data," or "SEG-D" is a common term for it, as well. I'm sort of not following my notes exactly. I don't think it really matters that much. Anyway, but then

[Page 52]

the processed data is called SEG-Y. You may see that term in some of the materials before you today.

So here we've taken one of the exhibits that was in the materials, and we have some Seismic Data for you to see. So on the left-hand side, we call that the "side label." It tells you a lot of information about who created the data and what steps they took to go out in the field to create the data, and also what steps they took at the processing center to create this visual image.

And then the visual image on the right is the Seismic Data. There you see that there's various lines. There are darkened lines, and then there is lighter gray lines. That is supposed to be the visual representation of the geology below the Earth's surface, the different sedimentary layers.

You can see that this particular piece of data is a piece of data that GSI/Halliburton had created and is part of the Seismic Works that were at issue today.

I have another visual for you, just so you can see some examples. Here you see -- yet, again,

[Page 53]

we've got the side label on the left-hand side. We've got the GSI logo at the top. So that was created by GSI. And then we have the information about what was done to create this data. We even see, closer to the bottom there, you actually see a visual representation of a ship in the water pulling the cables to tell you how it was situated and located. So you see that there's a little ship closer to the bottom there.

But here you can see that there's a lot of interesting geology that was captured, a lot of different layers there. And on the side label it says -- I know you can't read it in this particular image, but we transcribed it for you so you can see it better.

But it, specifically, says: "Proprietary data of GSI. This data is the property of GSI and is not to be copied, sold, or otherwise disclosed without the prior consent of GSI. Notice: These materials contain Confidential Information. All data, analyses, studies, compilations, reports, and other information represented on or contained in these media and the media itself constitute Confidential Information and

[Page 54]

trade secrets of Geophysical Service Incorporated. GSI retains all proprietary rights to sell, trade, license, disclose to the public or any third party, copy or otherwise deal, in any other manner, with these media. You are hereby notified that any dissemination, distribution, or copying of this media is strictly prohibited. Only Parties authorized by GSI may acquire a right to use, reproduce, or otherwise deal, in any other manner, with these media, subject to the terms of their license, and such Parties shall treat this information as confidential and secret, and protect and hold the information in confidence in the same manner that they treat their own Confidential Information and trade secrets. But in no event should they trade, sell, disclose to the public, or any third party, or otherwise deal with these media and the Confidential Information and trade secrets contained herein without the prior written consent of GSI. Notice these materials are copyright protected. Geophysical Service Incorporated. All rights reserved."

You get the idea. It was very, very clear

[Page 55]

that GSI had put notices that this was Confidential Information, that it was copyright. That's why it, specifically, says it is copyright. And so this was important to it.

Just so you understand where this came from, it is from exhibit -- an exhibit that the Respondent produced, Canada produced, out of its own data library. It is Exhibit R-561. I see that we just made a little bit of typo in the PowerPoint there. It says "R-61", but it is R-561.

So GSI built its entire business on collecting and creating this Seismic Data and licensing it to oil-and-gas companies. More recently, there has been interest in it from other industries looking at other rare minerals. So it's not just simply an oil-and-gas type of piece of information.

You have probably seen references to exclusive or nonexclusive data in the materials before the Tribunal in this proceeding. That's a reference to the way in which the data is owned. It is not a reference to what the visual Seismic Data looks like. It's a legal term about how it is owned and dealt

[Page 56]

with.

So the Seismic Data that GSI licensed to oil-and-gas companies, that is nonexclusive data. It's a nonexclusive license, whereby, you can have multiple licensees to the same piece of information.

Exclusive data is where a Seismic contractor might have worked for an oil-and-gas company and, specifically, created data that the oil-and-gas company asked -- it's basically a commissioned piece of artwork. Please, create this painting for me, and I'm going to own the painting afterwards.

So that's exclusive. The oil-and-gas company, they don't want anybody to know what they are doing. They don't want anybody to have the same information. That's their competitive advantage in having that information. And so they don't share it with anybody. That's how it becomes exclusive.

So as you can imagine, going out and creating this Seismic Data takes a lot of money. You have got to use Seismic vessels. They have very specific equipment like the cables, the source of the Seismic waves. They've got to hire crews to man those

[Page 57]

vessels while they are out at sea. You've got to obtain some permits -- environmental, safety permits.

So not just simply those authorizations that you may have seen in the materials being referenced by Canada. You've got to think about Research & Development. How do we think about where the next great spot is to look at, or how can we get a better imagine image of that particular spot? That is all information and it is expensive to obtain.

They've got to hire really skilled geoscientists to think about those things and also to work in their processing center and create the image that we see.

And so the Einarssons were investing in all of that. In fact, GSI became the owner of the largest offshore Seismic Data collection in Canada. GSI's marine Seismic Data led directly to the discovery of some of Canada's largest offshore oilfields, including Sable Island, which is offshore of Nova Scotia; the Bay du Nord and the Hibernia oilfield, which are off the coast of Newfoundland and Labrador; and the Amauligak oilfield in the Beaufort Sea that's closer

[Page 58]

to Alaska in the Arctic.

So I now want to turn to talk about the landscape governing the submission of Seismic Data to the Canadian Government Boards.

So there are three Boards: There were different names to some of the Boards, but essentially there have only ever been three Boards. And so we've got a map that came out of Mr. Dixit's Witness Statement here. You'll see on the bottom right-hand corner in gray, that's Nova Scotia. So that's the CNSOPB, Canada-Nova Scotia Offshore Petroleum Board.

We've got in purple here near Newfoundland and Labrador, the CNLOPB, that's the Canada-Newfoundland and Labrador Offshore Petroleum Board.

And then in pink at the top also on the West Coast -- but no one is worried about the West Coast in this Arbitration -- you see the Arctic.

And that is administered by the Canadian Energy Regulator, CER. That was previously named the NEB, the National Energy Board. It is located only approximately four blocks down the street from here,

[Page 59]

the NEB. It is open to the public to go to the library and to go to the Frontier Information Office where the data is located with the Canadian government.

The Frontier Information Office also previously resided in an entity called COGLA. I believe it's the Canadian Oil and Lands Administration -- Oil and Gas Lands Administration. It was disbanded in the early '90s. So you may see references to it in older materials.

Generally speaking in this Arbitration proceeding, you're going to see references to the NEB, even though it is now called the CER. That happened after the trial, the Alberta Decisions. So that's why you see references to the NEB in our materials.

So GSI had to obtain permits or authorizations to carry out its fieldwork offshore. Its processing work actually did not require a permit. I just want to make that clear, that the processing work happened in Calgary. And there is no permit to have to use the various tools and workstations in a Calgary office to create processed Seismic Data.

[Page 60]

There was only a requirement to obtain an authorization to go out to the field in the water.

As a condition for operating under the geophysical authorizations or permits, GSI was required to submit routine information to these Canadian Boards about their work. And it submitted it in the form of Reports. The Seismic Works were included in those Reports.

This is what we allude to about when we talk about specific performance requirements. And my colleague Mr. Lanctôt-Fortier will be speaking to Article 1106 of NAFTA in the Merits part of our Opening Statement. These authorizations actually come under a different Act than the Act that requires, allegedly, the disclosure of the Seismic Data.

So the authorization comes under the Canada Oil and Operations Act. And we have just put on our PowerPoint slide the specific purposes of that Act which are: Safety, protection of the environment, accountability in accordance with the polluter pays principle. Again, more safety, conservation of oil-and-gas resources, economic efficiency and the

[Page 61]

infrastructure out there.

This is different than the CPRA, which is where the disclosure has occurred. The CPRA is about promoting offshore oil-and-gas development. So the purpose of the authorization does not quite match the CPRA.

So starting in the mid-2000s, the Boards began requiring GSI to also submit digital forms of its data, so not just a paper copy or mylar. I'm not sure if you are all familiar with mylar, but it is sort of a plasticky sheet that you might have seen on overhead projectors or in a microfiche machine.

And so now GSI was being asked to submit it in an electronic format, in .PDF, .JPEG, .TIF files, on CD-ROMs, that sort of thing.

Canada will tell you that they think that the legal and regulatory landscape has been static. It has not. The Alberta Decisions determined otherwise, just as I specifically address this point. That it is, in fact, something that changed over the years. But it seems that Canada wants to continue to argue the Alberta Decisions and relitigate it. We

[Page 62]

do not. The Alberta Decisions are done.

They canvassed all of these laws. And the Alberta Decisions also confirmed what GSI had said all along, which was that its data was copyright.

So I also want to talk about the Copyright Act. The Copyright Act protects copyright in certain works as set out at Section 3. I just have it on the screen for you so that you see it, but copyright in relation to a work means the sole right to produce or reproduce the work or any substantial part thereof in any material form, whatever, to perform the work -- I don't think we're talking about that here -- and if the work is unpublished, to publish the work or any substantial part thereof.

So it's two of those three rights that have been taken from GSI: The ability to reproduce, and the ability to publish because it was otherwise kept strictly confidential.

Copyright now in Canada is for a term that is the life of the author plus 70 years. That changed after the Alberta Decisions. I just want to make that note. So you may see references to 70 years instead

[Page 63]

of 50 years. It was 50 years at the time of the Alberta Decisions. It has since been extended to 70 years, as required of Canada under the new NAFTA, the CUSMA, the Canada-U.S.-Mexico Agreement. So I just wanted to make that clear.

So I think we've got the term of copyright there. That was at the time -- and that one is the 50 years there.

And then I just wanted to make it clear, because people often think about copyright in terms of the author, when you work for a company, it is generally the case that you are creating it for your employer if you're creating something in the course of your duties. That is how GSI had come to own the Seismic Works that it created. And the Seismic Works that were created before the Claimant GSI existed were Seismic Works that the former entities had created and they had transferred the ownership and the copyright to the current GSI.

And so all of the Seismic Works, other than with respect to the handing out of them at the Boards, are otherwise enjoying their regular term of copyright

[Page 64]

but for that exception.

So I now want to turn to talk about disclosure. As I said, that happens under the CPRA, the Canada Petroleum Resources Act. It protects the confidentiality for submitted both exclusive and nonexclusive Seismic Data for certain terms. We've included that also in our PowerPoint so that you see it.

This is not a section that says those Seismic Works that you submitted, by the way, we're going to disclose them after five years. It's a very convoluted section. It says, information that was provided to the Government under this other act, it will be held privileged for a period of time. And then there are exceptions to that privilege period. And you can see that there are just sort of a D(2) there of that Section 101 of CPRA. You see after the expiration of five years following the date of completion of the work being the Seismic survey.

So that is how the regulatory landscape essentially works here in Canada when we talk about the Regulatory Regime.

[Page 65]

GSI also registered its copyright in its Seismic surveys with the Canadian Intellectual Property Office, another agency of the government of Canada. So Canada was certainly made well aware that the data was confidential and copyright based on the Notices on the data itself, on the side label, and numerous communications, but then also because it is registered as copyright and that GSI is the owner at the Canadian Intellectual Property Office.

So it seems as though Canada wants to relitigate, as I said, the Alberta Decisions. We're not here to do that, but my submissions in the next part address some of -- a response to that argument. We don't think that it's a live issue before this Tribunal, though. I want to make that clear.

So they say -- oh, the Claimants knew things and they knew ahead of time. Well, when you look at it carefully, many of Canada's arguments, as I mentioned earlier, were specifically rejected in the Alberta Decisions. So Canada seems to make an argument again that GSI consented to disclosure by participating in a regulated activity.

[Page 66]

Justice Eidsvik in the Common Issues Decision said this about that argument. At Paragraph 130 she said: "I will mention the permit requirements only briefly later in these reasons. They are not contentious and it is conceded that they contain nothing to suggest that Seismic Data is assigned or licensed to the regulatory bodies."

At Paragraph 317, she further said: "To suggest that it has" -- "it" being GSI here -- "has consented to the disclosure of its very valuable Seismic Data, impliedly or not, does not sit well with me. In my view, GSI has been forced to grant, in effect, a compulsory license to permit its offshore Seismic Data to be released and used by the public."

So we say this issue has been finally determined. It's not for the Tribunal to revisit. I want to also show you some examples, so I have an example of a permit that GSI Delaware had for some of the Seismic Works at issue. You'll see here on the screen that there is a highlighted portion. So the interim permittee was GSI Delaware in this case: "Shall, within a reasonable time, after

[Page 67]

completion of operations, submit a full Report to the Director of Energy Resources on the results of all exploratory work and carried out under the authority of this interim permit."

And here's the important part: "And the Province shall keep all such data confidential until such release date may be mutually agreed upon."

That certainly doesn't give you the impression that it is being handed out without GSI's consent. So these are the things that we see in some of the permits.

I also want to raise the concept of Secondary Submissions. So I talked a little bit about reprocessing of Seismic Data. So GSI and its predecessors may have submitted Seismic Data to the Boards as required, but they may do some further processing on that Seismic Data or they may license it to an oil-and-gas company who then does further processing.

And those versions also got submitted to the Boards, and those versions also are available at the Frontier Information Office for all of us to go and

[Page 68]

look at down the street. Those Secondary Submissions, Canada tries to say, oh, well, you know, the really high-quality Seismic Data, GSI has that and the Boards -- they weren't required to give it to the Boards. The Boards just took certain other things, and we don't release that stuff.

Well, that is not true because what is happening is the Boards are cataloging the Secondary Submissions under an oil-and-gas company's name, not GSI's name, and then disclosing it because it is considered exclusive Seismic Data and is released earlier. So that is not the case. They say, oh, we don't give out certain types of nonexclusive Seismic Data, don't worry, Seismic operators. But when your licensees are also giving it to the Board and the Board is handing those versions out, that's the same thing.

And GSI -- there is no way that GSI has ever been found to have consented to that process. GSI didn't know that was even happening. Its licensees were not allowed to do that under its own License Agreements where it says keep it all confidential.

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But they were doing it. They were seeking what are called allowable expenditure credits. The oil-and-gas companies would get a credit on their exploration expenses that they could then reduce their fees to the Government that they had to pay for having an Exploration Permit or having a production permit. So that was to benefit them and not GSI. GSI saw none of that credit for itself.

GSI always believed it was protected by copyright as you saw in the side label, for instance, that I read out to you. And that was confirmed in the Alberta Decisions. And the Regulatory Boards and the Federal Government even sometimes confirmed that understanding of GSI's. They did things like extend confidentiality periods, they entered into License Agreements with GSI for some Seismic surveys, and they have signage at the Boards and borrower liability agreements that specifically indicate that just because it's available, the Seismic Data is available at the Board, does not mean that it is not covered by intellectual property laws.

So here we see the signage at the Frontier

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Information Office down the street. It says: "The Frontier Information Office library contains material that may be subject to copyright, owned by those providing the material. The copyright law of Canada governs the making of photocopies or other reproductions of copyright material. Copying may be an infringement of the copyright law. The Frontier Information Office is not responsible for, nor does it authorize either implicitly or explicitly any infringement of this law."

That certainly gives you the impression that Canada isn't saying that it overrides the copyright law. It leaves you with the impression that Canada upholds its copyright law where it exists and applies.

We also see here the Frontier Information Office has a clipboard with the Frontier Information Office log. It specifically reads on this page: "The Frontier Information" -- so this is if you want to borrow some of the Seismic Data for a few days and take it out of the Board office. It specifically says: "The Frontier Information Office library contains material that may be subject to copyright,

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owned by those providing the material. The copyright law of Canada governs the making of photocopies or other reproductions of copyrighted material. Copying may be an infringement of the copyright law".

So we see the exact same information, and here you are actually required to sign it if you borrow it. So an oil-and-gas company that goes down to the Frontier Information Office that borrows some of the material to go make copies of it, they sign this that says that they acknowledge it too. That certainly doesn't leave you with the impression that there is no copyright at play.

If we go to the next one, I think, yeah.

So here we see an example of a License Agreement that was entered into by one of the Canadian government agencies with GSI, the current Claimant. I believe it's the current Claimant. Sorry. I see that it is 1993, so I might be wrong about that.

But here you see that the Canadian government agreed to terms of how to deal with that Seismic Data. It says: "All data delivered or conveyed hereunder are proprietary to GSI and GSI

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maintains trade secret and copyright interest in said data."

So the Canadian government agreed to that for that specific Seismic Data. It doesn't leave you with the impression that the Canadian government doesn't think that copyright exists in it or doesn't think that it shouldn't be maintained in it.

Then I want to talk to you about specific Minutes of a joint government and industry frontier geophysical committee meeting in 1999. Here we have just excerpted it. It specifically says: "This led to further discussion on the issue of scanning companies and copyright violations. NEB explained its position that there is no transfer of ownership of data from the Operators to the government when data is submitted. The data is also not placed in the public domain when the regulators release the information from privileged status under the legislation. Ownership of the data rests with the operators and they must enforce that ownership if they feel their data is being misappropriated."

That's the NEB's position in 1999. It

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certainly doesn't leave you with the impression that they didn't think that GSI had an enforceable copyright.

Canada was certainly aware that the Claimants were adamant that they had intellectual property protections over the years. That is set out in several letters. I won't go into them in great detail. They are in the package of materials before you, Tribunal.

I did want to bring your attention to a further letter that the Government of Canada sent in 2010. They sent this to GSI. Here we see a letter from Natural Resources Canada. That is the department or Ministry of the Government in Canada that deals with natural resources and minerals such as oil-and-gas matters.

So Natural Resources Canada sends a letter in June 2010 saying that they specifically -- at the bottom there of the first page of the letter -- so the last two points there: "With respect to data filed with the Boards where the period of exclusivity has expired, specifically paper or mylar images, the

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Geophysical Survey of Canada, GSC, agrees not to create SEG-Y data from scanned images without prior written consent from the data owners until we obtain a clear Legal Opinion from Justice Canada on potential intellectual property issues."

So in 2010, Canada's not saying it is not copyright, it's not saying our laws override -- these other laws in the CPRA override copyright, they are saying, gosh, we need to get a Legal Opinion on this, but we won't be making any copies or reformatting it in the meantime. That doesn't leave you with the impression that they don't think it is important that the data is copyright.

So GSI started to figure this out, and it took a long time to figure some of this stuff out. It started to make access to Information Act requests of the Government. The Government actually opposed those requests. And in 2003, GSI actually took that issue to the Federal Court of Canada, and the Federal Court of Canada ordered the Boards to give GSI the names of the Parties that had been accessing GSI's Seismic Data at the Boards.

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So you'll see here -- I've just quoted from that Decision. The Court said: "Apart from the foregoing, I further conclude that none of the Boards can succeed in resisting disclosure of the names of requesters and the link between those names and the information requested on any of the grounds for exemption asserted by it. Put another way, I conclude that the applicant is entitled to disclosure to it of the names of those who requested of a Board the release of information or data provided to that Board by the Applicant" -- being GSI is the Applicant -- "and the link between each such requester and the data requested."

So GSI actually had to go to court just to even find out who was accessing its data. The Boards refused to cooperate. And then the Boards took years to actually respond to those accessed Information Act requests. So we get a Decision in 2003, and it is not until 2007, '08, '09, '10, '11, '12, that GSI starts to get some answers, and that's when it starts to sue the oil-and-gas companies and the copy companies for accessing its data and for copying its data.

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That's why we get a whole bunch of copyright infringement actions started in that time frame, because that's when GSI found that out. So GSI didn't know that before. It had no access to it. It is very clear that it didn't have access when it is having to go to court to actually get that information.

And so, then we see GSI tried to take some other steps to stop some of this stuff from happening.

So they did a judicial review. The NEB wanted -- or said that it had some surveys. They were still in the privilege period. They had not been released. And GSI decided to judicially review the potential release of those data sets.

It did that in -- it was related to a Seismic survey that was created in 2008. So because of the privilege period in the Arctic, it was going to be maintained as confidential based on the policies for 15 years, so not until 2023 would it actually potentially become open and available to the public.

And when GSI did a judicial review in the Federal Court, the Federal Court of Appeal ultimately said that the issues of disclosure were not ripe for a

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Decision because the data was still confidential at that time. This is back in 2011. And so they said, well, I don't know, maybe it won't be disclosed. So I'm the Court. I don't know what the Government is going to do with it. It is currently confidential. I can't do anything for you, GSI.

So that's kind of the lay of the land of where GSI was at until we finally get to the common issues proceedings. And one of the companies in the common issues proceedings, Antrim, decided to try and get a summary dismissal of GSI's claim, and they relied on the Regulatory Regime and the laws to do so. That was the Antrim Decision. And in the Antrim Decision, the Alberta Court of Queen's Bench at the time -- it's now the King's Bench -- said I can't give you summary dismissal because the law is not clear enough to me. You can go and read the Decision. And that happened in early 2015.

GSI finally got one of its other cases, the Calwest Case, set down for trial in later 2015. All of the other defendants in the copyright infringement claims said, oh, I need to participate in that trial

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because I think there is some common issues that might affect my case, in the Calwest Case.

So we went to trial on the Calwest Case, and there was this sort of appendage added on to the Calwest Trial, which is the Common Issues Trial. The Common Issues Trial had two questions: One of the questions was, can copyright subsist in Seismic Data; and the second question was, what is the effect of the Regulatory Regime on GSI's claims?

So one is general, but one is more specific. The copyright question -- I see that Canada tries to say, well, it is more general. It is not about GSI Seismic Works. But the second question about what's the effect of the Regulatory Regime on GSI's claims, those are GSI's claims. That is specific.

As we all know, the Common Issues Decision agreed with GSI. Yep, the data is copyright. And then on the second question, they actually kind of came up with their own answer. Canada did not argue that it was confiscated and neither did GSI. GSI argued in sort of in terrorem argument of, well, if what Canada is saying that they

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get to disclose this stuff and that's perfectly fine, that is going to amount to confiscation. Don't do that to me, Court. That's not what the legislation should say. It doesn't allow this to happen. That was GSI's argument before the Court.

And it was Justice Eidsvik that came up with, it's confiscatory and it's a compulsory license, you cannot enforce your copyright when your Seismic Data is given out by the Boards.

So -- if we zoom forward.

So here we see the conclusion about copyright. "In conclusion, the raw or field Seismic Data is an original literary compilation work, and the processed data is both an original literary compilation work and an artistic compilation work in the scientific domain. As such, they are protected under Section 3 of the Copyright Act."

For the reasons I have outlined, there is no need to resort to or rely on any presumption of copyright. In other words, Justice Eidsvik reviewed the law in great detail and reviewed the facts in great detail about how to create Seismic Data, that's

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how she came to that Decision.

And then just as that gets confirmed, we then see the answers to the second question.

If we could...

Here I've already told you about how GSI was found to not have consented to this, that it has been forced to grant a compulsory license. And so at Paragraph 318, Justice Eidsvik says: "In conclusion on the second question, I find the Boards have not breached GSI's rights under the Copyright Act by copying, or allowing others to copy, the Seismic Data GSI deposited with them. The specific legislative authority in the CPRA and the Federal Accord Act overrides the general rights contained in the Copyright Act. Further, or in the alternative, the Regulatory Regime created a compulsory licensing system through which the Boards have the authority to copy, and as a result, they are not infringing the Copyright Act when they do so."

So, it did that. The way that Justice Eidsvik went about doing it, and you'll see this in the Decision, is that she first dealt with copyright

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in order to find out whether there was copyright in Seismic Data. Once finding out that there was, in fact, copyright in Seismic Data, she then went on to find out whether there was a conflict between the Copyright Act protections and the Canada Petroleum Resources Act, the CPRA disclosure.

And she said the CPRA, even though it doesn't use the word "copy" or "copyright" or "reproduce," or "publish," the fact that the privilege period expires must mean that you can copy. And therefore, there's a conflict between these two acts, and I find that the CPRA is the more specific legislation about Seismic Data than the Copyright Act, which is not specifically about Seismic Data.

And using a principle called lex specialis, which is a Latin term, maybe all of you are familiar with it, certainly you have Expert Reports on it now, it's a principle of statutory construction, that is what she used to determine the conflict and decided that one overrode the other.

And so the Common Issues Decision further stated that GSI was not entitled to any compensation

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for that compulsory license, that confiscatory compulsory license.

The Common Issues Decision then went to the Court of Appeal. So the Respondents, which included Canada, did not appeal on the copyright determination. And they also didn't cross-appeal about the arguments that they make today, which are that GSI consented by participating in a Regulatory Regime. Justice Eidsvik found against that. Canada did not cross-appeal against that finding. And so only GSI appealed about the Regulatory Regime barring its copyright infringement claims.

And the Court of Appeal finds -- and it's on the screen here -- "As found by the Trial Judge, there is no breach of copyright in this matter by the Boards' disclosure of Seismic Data after the privilege period, including allowing data to be copied. The specific legislative authority of the Canada Petroleum Resources Act and the Federal Accord Act overrides the general rights contained in the Copyright Act. Further, or in the alternative, the Regulatory Regime created a compulsory licensing system through which

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the Boards have authority to copy." That was the trial Decision at Paragraph 318 that I just read to you.

"Here, that means GSI's exclusivity to its Seismic Data ends, for all purposes, including the Copyright Act, at the expiry of the mandated privilege period. Thereafter, GSI has no legal basis or lawful entitlement to interfere or object to any Decisions made by the Boards relating to its collected data."

And so, further, GSI had also appealed about this connection to supposedly there being no compensation. And the Alberta Court of Appeal basically dispensed with the issue. They said: "Given our findings on the first ground of appeal, this issue need not be dealt with. The correct statutory interpretation was reached by the Trial Court in determining the legislation's confiscatory nature as the data collected under the Regulatory Regime, again, in keeping with its intended purpose of dissemination following the privilege period."

So, in other words, they left it alone. So

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no compensation for GSI. And that's what brings us here today is GSI has already litigated with Canada in the Alberta Courts, in the Canadian Courts. Everybody has had their time to deal with this. We are just looking for the compensation. That's what makes it an illegal expropriation.

Legal expropriation is where you get compensated for it. Illegal is where you don't get paid for it.

So I'm mindful that I also want to turn to my friends because I think I have gone over much of the facts at this point in time, and I want to turn it now to Marianne Bastille-Parent to speak to the jurisdiction, but I realize that we might need a break.

PRESIDENT WALLGREN-LINDHOLM: Thank you very much. We will break for 15 minutes, which means we are back here at 11:30.

(Brief recess.)

PRESIDENT WALLGREN-LINDHOLM: No. But I would like to start because it seems like we are slipping a bit unnecessarily. So we try to set a good

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example from Day 1.

MS. BASTILLE-PARENT: Perfect.

PRESIDENT WALLGREN-LINDHOLM: If we can, yes.

So, can we now --

(Comments off microphone.)

PRESIDENT WALLGREN-LINDHOLM: Yes, this will be fine.

So can we commence now?

MS. BASTILLE-PARENT: Yes.

PRESIDENT WALLGREN-LINDHOLM: Thank you.

MS. BASTILLE-PARENT: So as announced by my colleague, Matti Lemmens, I will be going over jurisdiction with you. And in the present case, to give you a bit of a road map, there are three main different jurisdictional issues.

First, Paul Einarsson's American nationality and, thus, his qualification as an investor of another Party other than Canada; second, the time limitation of the Claimant's Claim under Article 1116(1) and 1117(1) of NAFTA and, third, the Claimant's compliance with the waiver requirement enshrined in Article 1121

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of NAFTA.

For efficiency purposes we will not go over uncontested elements, but you may note from the outset that the qualification of Davey Einarsson's estate as investor of a Party, as an investor that is moving on with Davey's prior Claim before his passing is not contested by Canada.

So as regards the first contested element, Paul Einarsson's nationality, I intend to be brief. My colleague, Matti Lemmens, presented you with the relevant facts underlying our contention that his nationality is, has always been, and remains American, but I would like to point to you a few additional points as regards the applicable law regarding the nationality of investors.

First of all, it is relevant to note that NAFTA does not dictate how to deal with claims by dual citizens, but Article 1131 of NAFTA, however, tells us that international law applies. So we, thus, turn to international law.

There are two relevant precedents for you to be aware of. It is, in fact, very likely that you

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know these cases already. They are quite well known.

The first case is the ICJ International Court of Justice Nottebohm Case, which explains to us what is the applicable test, the applicable legal test when determining the nationality of an individual.

You have on the screen at the moment an excerpt of Page 22 of this case, and I do not intend to read it all with you, for efficiency purposes, but the point is that -- it is highlighted in yellow.

The takeaway is that determining the nationality of an investor is about determining which country has actually -- the investor has the stronger ties with which country, and determining said stronger ties, is going to be based on a number of factors, which were laid out in the second case that I would like to bring to your attention, which is the UNCITRAL Ballantine Case.

And at Paragraph 559 -- which is excerpted on the visual before you, there is a list of the factors that you shall consider in your determination. Which are the investor's habitual residence, second, the individual's personal attachment for a particular

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country, third, the center of the person's economic, social, and family life, and, fourth, the circumstances in which the second nationality was acquired.

Paul Einarsson has testified extensively about these factors in his Witness Statement, and he will provide an additional testimony later today, so I will leave it at that in terms of the relevant facts, but the contention that we put forward is that, as I've mentioned, his nationality is, has always been, and remains American.

The second -- moving on actually to the second contested jurisdictional element, the time limitation of the Claimant's Claim. So, in summary, Article 1116 and 1117 of NAFTA provide that a claim must be made by an investor, on its own behalf or on behalf of an enterprise, no more than three years from the date on which the investor acquired actual or constructive knowledge that a breach has occurred and that damages have been incurred as a result.

Rapidly, "actual" means that the investor has knowledge of the breach and the related damages

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and "constructive" means that the investor should know of the breach and the related damages.

As explained by my colleague earlier, we estimate that in the present case the trigger for the three-year time limitation is November 30, 2017, which is when the Alberta Decisions became final and crystallized GSI's expropriation and intellectual property transfer.

Contrary to what is alleged by Canada, the Claimants do not bring a claim on the basis of the Regulatory Regime, namely the CPRA. Their claim is not that this Regulatory Regime is unlawful. That is a mischaracterization and reformulation presented by Canada, the Claimants' Claim is that the Alberta Decisions are the relevant actionable breach of NAFTA.

The Notice of Arbitration is very, very clear to that effect, meaning that this is -- and this has always been the actionable breach brought forward by the Claimants. So if there is any doubt referenced to the very inception of this case is relevant to clear out any doubt that may have been created by Canada's submissions on this point.

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You have on the screen an excerpt of the Notice of Arbitration where you can see very clearly at Paragraph 28 and 29 that it is the Alberta Decisions that have deprived GSI of its copyrights and trade secrets.

Time-wise, Canada is -- well, concedes that the Alberta Decisions were rendered less than three years prior to the filing of the Notice of Arbitration, so if you, indeed, agree with the Claimants that the trigger point is November 30, 2017, the Notice of Arbitration was filed within the three-year time limitation, without any doubt.

I do not intend to go into great details about the merits of this contention, namely whether the Alberta Decisions do indeed constitute a breach of NAFTA because my colleague, Vincent Lanctôt-Fortier, will do so at a later time. But I would like to recall a few basic principles that are relevant for your jurisdictional determination.

The first principle is that it is upon the Claimants to decide their own cause of action and, thus, to determine which actionable breach they bring

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forward as a basis for their claim. It is a decision that they made consciously, and they were entitled to decide.

So Canada argues that the Claimants' cause of action is, in fact, incurred in the Regulatory Regime, as I have mentioned.

Canada adds that the Claimants knew of and even suffered of the Regulatory Regime's effects for at least a decade before the Alberta Decisions became final, but we submit that, through this contention, Canada is doing two things: First, it is rearguing the Regulatory Regime, which the Claimants are not doing, because the Claimants accepts the Alberta Decisions. They do not contest them as such.

Second, Canada is mischaracterizing the Claimant's Claim in this Arbitration as well as the evidence. So we submit that caution should be exercised with Canada's recharacterization of the Claimant's Claim.

For jurisdictional purposes, the Measure at issue shall be identified by reference to the Claimants' submissions. That is a well-accepted

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principle that, of course, the Claimants will bring their own cause of action forward and they must match their submissions or they must be in line with their submissions. This was confirmed in many NAFTA precedents. At the screen you can see an excerpt of the Eli Lilly Case, which is, in fact, not a NAFTA case, but an UNCITRAL one.

Actually -- my apologies, this is a NAFTA case. And at Paragraph 163, we can read, "however, as Claimant is the Party asserting the Tribunal's jurisdiction to decide its substantive claim, the alleged breach must, in the First Instance, be identified by reference to the Claimant's submissions." Again, this is a very well-accepted principle in NAFTA precedents.

For your reference and your consideration, we have also added in our PowerPoint an excerpt of the Glamis Decision, which is to the very same effect. So I will move on to our next point, but we submit that these two Authorities very well confirmed what I have just said. So whether the actionable breach as characterized by the Claimants constitute a breach of

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a substantive obligation under NAFTA is, in the end, a matter to be determined on the Merits, not at the jurisdictional stage.

I would like to point to you a passage, an excerpt of the Alberta Court of Appeal Decision, which is on the next slide. Yes. And it confirms, in fact, that the Alberta Decisions' effect was to determine GSI's Copyrights, and the point that I am making here is that it was not a regulatory Decision, it wasn't a Decision deciding on previous regulatory Decisions. It is a judicial decision about copyrights.

And at the end of Paragraph 104 of the Decision that I've just mentioned, it says here: "That means GSI's exclusivity to its Seismic Data ends, for all purposes, including the Copyright Act, at the expiry of the mandated privilege period. Thereafter, GSI has no legal basis or a lawful entitlement to interfere or object to any decisions made by the Boards relating to its collected data."

So this confirms what I've just said to you: The Alberta Court of Appeal determined that GSI does not have a legal entitlement to challenge the

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Regulatory Regime itself nor previous Regulatory Decisions. So this was not the litigation before the Alberta court. It was a Copyrights litigation.

The second principle that I would like to tell you about is that when assessing whether the Alberta Decisions are an independent actionable breach, the Tribunal ought to look at whether the Regulatory Regime and the Alberta Decisions are intertwined. In a nutshell, Canada argues that the Alberta Decisions are not sufficiently detached from the Regulatory Regime to constitute an independent actionable Measure.

Canada adds that the Claimants are now tolling the Regulatory Regime's time limitation. As I've just mentioned, at the Alberta Decisions, are, in and of themselves, judicial Decisions about the application of copyright to -- copyright law to Seismic Data. They are not administrative in nature.

They are not regulatory in nature, nor are they anchored in the Regulatory Regime nor prior Regulatory or Administrative Decisions or Measures.

So the point is that they are very well detachable.

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They are not intertwined.

To this point the Claimants in the past have tried to litigate administrative and -- actually Administrative Decisions rendered by the Regulatory Boards. They have tried that before, and as further explained in our rebuttal at Paragraph 100, they were told that these Claims were premature.

So again, Canada is contending that this Arbitration is about the Regulatory Regime. This was tried before, and it did not work, and this is not what GSI is doing in the present arbitration. It is challenging Judicial Decisions.

Another relevant element that you should consider is that, before the Alberta courts, as I've mentioned, the Claimants litigated copyright infringement. It was following the Defendant's presentation of their defense arguments that the interplay between the Regulatory Regime and the Alberta Decisions became an issue, but initially, before the Alberta Courts -- again, the Regulatory Regime was not challenged, nor prior Regulatory Decisions.

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So the Alberta Decisions became an expected -- unexpected change in law, and this change in Canada's legal landscape concerning copyright protections created by the Alberta Courts is independently justifiable under NAFTA. That is our contention.

If you wished to refer to a case where a similar issue was brought before a NAFTA Tribunal, we suggest that the Eli Lilly is probably the most relevant precedent for us.

In that case Patents were invalidated administratively before judicial actions were undertaken, and the Tribunal at the jurisdictional stage was well aware of the previous regulatory landscape that led to the Court litigations being instituted, and it, nevertheless, determined that this previous factual background, regulatory background was detachable, was not intertwined with the following court Decisions instituted by Eli Lilly, the Claimants in that case.

I will not go over the facts more, for efficiency purposes, but we do submit that Eli Lilly

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is a very relevant case to consult. Canada in its submissions in support of the argument that the Regulatory Regime cannot be detached from the Alberta Decisions relies heavily on the Apotex Case which I believe this Tribunal may be familiar with.

And again, in that case -- in fact, we submit that Canada should not exactly be relying on this case because it supports the contention that administrative and regulatory Decisions which factually eventually lead to court decisions can very well be detached from one another. Of course this is a factual determination at the end of the day, but there are several precedents demonstrating this possibility.

And the third and final principle that is relevant for us, I've just mentioned it. Actually, it is that when assessing when the Claimants acquired actual or constructive knowledge of the actionable breach and related damages prior facts can be considered as they provide factual background. Eli Lilly, once again, is a very relevant case to that point.

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I will be very succinct on this principle because it is a very well established and accepted element that the Tribunal, when determining whether to exercise its jurisdiction, can look at facts that predate the actionable breach or that even predate NAFTA. So this, in -- in theory, this is not even contested by Canada. We submit in the present case that Canada's conduct under the Regulatory Regime since the 2000s, although it is not the actionable breach, is, nevertheless, relevant because it constitutes the factual background of the Alberta Decisions and, in fact, this is the background that explains why the Alberta Decisions were required and why GSI needed its copyrights to be determined by a judicial court.

On the screen, we have put excerpts of the Clayton and, once again, the Eli Lilly Decisions. For time purposes, I will not read them all with you, but they're there for your reference. They simply confirm the fact that prior events are typically considered for jurisdictional purposes, for the purposes of determining the actionable breach that constitutes the

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trigger point of time limitation, but in no way do these events testify all the time that the Claimants knew of or should have known of the upcoming actual breach -- actionable breach, pardon me. There is no direct connection between the two. Prior facts are just relevant to better assess whether the Claimants -- whether the actionable breach occurred and why it occurred, essentially.

In the present case, we submit that it is more than evident that the Claimants could not foresee the Alberta Decisions' outcome, although all the previous facts that unfolded before said Alberta Decisions became final. That is because, as I've mentioned, the Alberta Courts, which created a new legal norm, namely a novel compulsory license scheme with confiscatory effects, as explained by Dr. Cameron Hutchison and Prof. Nigel Bankes's Expert Report, was a surprise for the Canadian legal community.

During this Hearing, you will have a chance to hear both of these Experts, and they will explain to you in great detail how and why the outcome of the Alberta Decisions could simply not be anticipated and,

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thus, how and why the Claimants' so-called "constructive" knowledge of the effects of such outcome could not exist before said Decisions.

To give you just an additional point, Prof. Nigel Bankes comes from an Energy Law background, and he will speak to the purpose of the Regulatory Regime to help us better understand how unpredictable it was that the Alberta Courts would determine that said Regulatory Regime overrode the Copyright Act. And Dr. Cameron Hutchison will explain that the actual existence of a conflict between two pieces of legislation, here the Copyright Act and the CPRA, cannot be determined until said applicable legislation is fully construed using the modern principle, which is what the Alberta Courts did. This means that, before they had completed this exercise, this interpretation exercise, the Claimants could not know the outcome of said exercise.

As mentioned by my colleague Matti Lemmens earlier, the result of this interpretation exercise, namely, that the CPRA creates a carve-out or an exception to the Copyright Act, was then unknown, and

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was unforeseeable.

So to conclude briefly on this point, we submit that the trigger point of the time limitation at issue is November 30, 2017, and everything that happened before, regulatorily and administratively- wise, although it is relevant to understand why the Alberta Courts were necessary and were actually instituted, it does not testify to the Claimants' so-called "actual" or "constructive" knowledge of the breach that they suffered and related damages.

The third contested element in this case is the waiver issue. Article 1121 of NAFTA provides that the investor must waive all of its rights to initiate or continue any proceedings with respect to the Measure of the disputing Party that is alleged to be a breach of NAFTA.

This waiver commitment is threefold: first, it encompasses not to initiate proceedings; second, not to continue proceedings; and, third, with respect to the Measure alleged to be a breach of NAFTA. So this is all connected. Canada contests that this

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requirement is met for two reasons: namely because the Claimants did not administratively terminate two Domestic Actions against the CNLOPB and -- the Province of Newfoundland and Labrador; and, second, because they did not terminate a series of Domestic Actions against private third parties for unpaid license invoices.

Rapidly, let's begin by recalling the object and purpose of Article 1121 of NAFTA. It is well-established in NAFTA precedence that it is to prevent the Claimants from pursuing concurrent, domestic, and international remedies which could either give rise to conflicting outcomes or lead to double redress for the same conduct or measure at issue.

On this point, I could refer you to the International Thunderbird precedent as well as the Waste Management precedent. They just confirm what I have just said.

So in theory, it is possible for domestic proceedings to coexist simultaneously with a NAFTA Arbitration to the extent that this object and purpose

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are met.

There are two components to this commitment. There is one formal component and one material or substantive component. The formal component here, I will be very succinct because it is not contested, per se. The formal component is basically to submit a waiver in writing along with the Notice of Arbitration. This Notice has to be clear, explicit, unconditional. In the present case, it was a waiver accompanies the Notice of Arbitration filed by the Claimants.

Moving on to the second component, which is more contested in this case, the substantive one. So the substantive component entails that the Claimants commit not to initiate or continue proceedings with respect to the same Measure. This is, in other words, a manifestation -- the waiver is a manifestation of the written waiver filed alongside the Notice of Arbitration.

This is an expression that -- actually, this is an expression to give the defendant, Canada in this case, certainty that it will not have to defend itself

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in various forums for the same breach, for the same damages.

We submit that, in the present case, this commitment was honored.

It is well explained in our Claimants' Memorial, so I will not spend too much time on that for efficiency purposes, but the Claimants discontinued a significant number of domestic proceedings before initiating this Arbitration. So they did do their homework, so to speak.

An important example is that they discontinued an expropriation claim that was commenced against Canada after the rendering of the Alberta Decisions. That's an important element, but, nevertheless, they discontinued it before filing the Notice of Arbitration.

So let's talk briefly about the two actions that remained administratively existent before the Courts of Newfoundland and Labrador. It is a fact that they were discontinued or dismissed after the filing of the NOA. We submit, however, that this constitutes an immaterial noncompliance with

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Article 1121 of NAFTA. Canada adopts a strict approach to this waiver requirement, but we submit that this is not necessarily the state of the law on Article 1121.

There are several cases that confirm what I've just mentioned, and they are well explained in our written submissions, but, for example, I could refer you to -- doesn't matter -- the International Thunderbird Gaming precedent and the Ethyl Corporation precedent which do confirm that a more flexible approach to this waiver requirement was adopted before.

I will say that, in those two specific cases, the immaterial noncompliance with the waiver requirement was different. In fact, what happened is that the Claimants filed their written waiver sometime after the filing of their Notice of Arbitration. These cases were not about administrative or -- litigations not dismissed or discontinued before the filing of the Notice of Arbitration, but we submit, however, that these immaterial noncompliances were -- our noncompliance in a -- so to speak, is as

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immaterial as in those cases. And I will also add that it is a novel question that you will have to determine, whether such an immaterial noncompliance with Article 1121 must bar your jurisdiction.

And, as regards the private actions that were commenced by the Claimants against licensees, I will refer you to our written submissions, but our point is that they are based on totally different breaches, contractual breaches, in those cases, that the damages sought are equally different, and that it is important not to conflate private parties who do not have a right to claim under NAFTA and public parties, such as the Government, which is liable under NAFTA.

MR. LANCTÔT-FORTIER: Good day.

For once, my height is an advantage, except when I played basketball, so I see the Members of the Tribunal very clearly, so I will be sitting during my submissions.

Throughout our Pleadings and this Hearing, the Claimants will demonstrate that the Alberta Decisions breach Article 1110 of NAFTA by confiscating

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GSI's copyright in the Seismic Works through a compulsory license in a manner tantamount to expropriation.

I will first provide an overview of the legal framework applicable to measures tantamount to expropriation under NAFTA. And for ease of reference, this section of our Opening Statement corresponds to Part 4(a) of the Claimants' Memorial and Part 4(a) of the Claimants' Rebuttal Memorial.

Article 1110(1) of NAFTA provides that Canada cannot directly or indirectly nationalize or expropriate an investment of an investor of another party in its territory or take a measure tantamount to nationalization or expropriation of such an investment, except for a public purpose, on a nondiscriminatory basis, in accordance with due process of law in Article 1105(1) of NAFTA, and, on payment of compensation.

Article 1110(1), therefore, prohibits, on the one hand, direct and indirect expropriation and, on the other hand, measures tantamount to nationalization or expropriation. The distinction

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between expropriation, whether direct or indirect, and measures tantamount to expropriation, is that measures tantamount to expropriation require no actual transfer, taking, or loss of property by any person or entity. Instead, measures tantamount to expropriation are those that render the ownership of the foreign investors' property ineffective or irrelevant.

The NAFTA Tribunal and the Waste Management case provides the following explanation on this concept at Paragraph 143 of the Award. And I will read directly in the middle of the paragraph: "By contrast, where a measure tantamount to an expropriation is alleged, there may have been no actual transfer, taking, or loss of property by any person or entity, but, rather, an effect on property which makes formal distinctions of ownership irrelevant."

Moreover, a Claimant must demonstrate that the measure at issue amounts to a substantial deprivation of the investment, which is the case with GSI's business, as a result of the Alberta Decisions, as previously explained by my colleague Ms. Lemmens.

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NAFTA Tribunals have also confirmed that a domestic court decision, such as the Alberta Decisions, can constitute a measure adopted or maintained by a party for the purposes of NAFTA. Here I refer you to the NAFTA Tribunal's Decision in the Loewen Case, which states the following at Paragraph 54 of the Award: "An adequate mechanism for the settlement of disputes, as contemplated by Chapter Eleven, must extend to disputes, whether public or private, so long as the State Party is responsible for the judicial act which constitutes the 'Measure' complained of, and that act constitutes a breach of a NAFTA obligation, as, for example, a discriminatory precedential judicial decision. The principle that a State is responsible for the Decisions of its Municipal Courts supports the wider interpretation of the expression 'measure adopted or maintained by a party'."

The NAFTA Tribunal in Eli Lilly in the Eli Lilly case also stated that judicial acts will be attributable to the State by reference to uncontroversial principles of attribution under the

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Law of State Responsibility. The interaction of the principles of State responsibility and decisions of domestic courts that give rise to breaches of NAFTA was affirmed by the NAFTA Tribunal in Azinian. As follows, quoting the former President of the International Court of Justice, Mr. Eduardo Jiménez de Aréchaga: "The responsibility of the State for acts of Judicial Authorities may result from three different types of judicial decision. The first is a decision of a municipal court clearly incompatible with a rule of international law. The second is what is known traditionally as 'denial of justice'. And the third occurs when, in certain exceptional and well-defined circumstances, a State is responsible for a judicial decision contrary to municipal law."

As appears from Azinian, there are three distinct scenarios where the responsibility of the State may be found in international law following a judicial decision. The Claimants' Claim under Article 1110 NAFTA falls within the first scenario, where a decision of a domestic court is clearly incompatible with a rule of international law,

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considering that the Alberta Decisions are inconsistent with Chapter Seventeen of NAFTA, as I will explain in a moment.

The Claimants do not allege denial of justice, nor do they need to, in this case, for a breach of Article 1110 NAFTA to be found. Canada contends that a denial of justice is necessary for judicial decision to constitute an actionable breach under NAFTA, but its arguments are unfounded.

As stated by the NAFTA Tribunal in Eli Lilly, a judicial act can constitute an expropriation when it crystallizes a taking contrary to Article 1110 NAFTA. Here is the relevant extract: "It is possible to contemplate circumstances in which a judicial act, or omission, may engage questions of expropriation under NAFTA Article 1110, such as, perhaps, in circumstances in which a judicial decision crystallizes a taking alleged to be contrary to NAFTA Article 1110."

The Tribunals Decision in Sistim, rendered under the Türkiye-Kyrgyz BIT, offers an example of a judicial Act that formed the basis of an expropriation

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without a finding of denial of justice.

We have detailed this Decision at Paragraphs 215 and following of the Claimant's Rebuttal Memorial. But, in essence, the Tribunal in Sistim concluded that the impugned domestic court Decisions, which annulled a Share Purchase Agreement, had deprived the Claimant of its property rights in its investments, namely a hotel, just as if the State had expropriated it by Decree, and that no compensation had been paid to the Claimant.

The Tribunal came to these determinations without any findings of denial of justice, rather noting that the abrogation of the Claimant's property rights amounted to a breach of the Türkiye-Kyrgyz BIT, which forbids the expropriation of property unless it is done for a public purpose in a nondiscriminatory matter and upon payment of prompt, adequate, and effective compensation, similarly to the conditions provided under NAFTA.

Therefore, in the context of this Arbitration, the Claimants only need to demonstrate that the Alberta Decisions constituted an

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expropriation that resulted in a substantial deprivation of the Claimant's investments. This step is clearly met in this case, as explained earlier by my colleague Ms. Lemmens.

Two, the Alberta Decisions did not satisfy one or more of the expectations to expropriation set out in Article 1110(1). None of these exceptions apply in this Arbitration.

And, three, the Alberta Decisions were inconsistent with Chapter Seventeen, which would satisfy the criterion from the quote in Azinian that the Alberta Decisions were clearly incompatible with the rule of international law. I will now briefly explain this third requirement and the interaction between Article 1110 and Chapter Seventeen.

Article 1110(7) of NAFTA confirms that interference with intellectual property rights can give rise to a violation of Article 1110 where that interference is inconsistent with Chapter Seventeen of NAFTA.

Article 1110(7) reads as follows: "This Article does not apply to the issuance of compulsory

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licenses granted in relation to intellectual properties rights, or to the revocation, limitation, or creation of intellectual property rights, to the extent that such issuance, revocation, limitation or creation is consistent with Chapter Seventeen."

The effect of Article 1110(7) of NAFTA is that for any expropriation involving intellectual property rights, any limitation or revocation that is inconsistent with Chapter Seventeen will form the basis of an Expropriation Claim under Chapter Eleven.

There are a few authorities that discuss the interrelation between Chapter Eleven and Chapter Seventeen. One of those Authorities on which both Canada and the Claimants rely, but with very different interpretations is a legal commentary of authors Meg Kinnear, Andrea Bjorklund and John Hannaford on Article 1110(7). And that authority is CLA-40 in the proceedings.

So the relevant extract reads as follows: "Article 1110(7) prevents an investor from claiming that the host Government has expropriated its investment by the issuance of a compulsory license

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relating to intellectual property rights or the revocation, limitation, or creation of intellectual property rights, where such measures are consistent with Chapter Seventeen of NAFTA. Chapter Seventeen of NAFTA is entitled 'intellectual property.' It obliges the NAFTA Parties to provide effective protection of intellectual property rights and to ensure that domestic enforcement procedures are available for infringement of those rights.

"The express wording of Article 1110(7) to the extent that such issuance, revocation, limitation, or creation is consistent with Chapter Seventeen may see application of the paragraph contingent on the host Government acting consistently with Chapter Seventeen."

And Canada relies on the second part of this quote, which says: "Absent a provision, such as Article 1110(7), one can imagine an investor claiming that the issuance of a compulsory license, or the revocation, limitation, or creation of intellectual property rights effectively expropriated its investment, resulting in an obligation on the host

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Government to compensate for the loss caused by its measures or to provide restitution of the intellectual property rights. The mischief that such a claim would cause domestic intellectual property regimes is evident. Presumably, the drafters of NAFTA included Article 1110(7) to avoid any such argument."

But when this second part says is that, without Article 1110(7) and the contingency of the States compliant with Chapter Seventeen, Claimants could bring forward Expropriation Claims simply when their intellectual rights are revoked or limited.

That is the mischief.

But, clearly, the application and host State must comply with Chapter Seventeen of NAFTA. It is, therefore, necessary to review the main provisions of Chapter Seventeen and the protections it offers to GSI's Seismic Works.

Chapter Seventeen of NAFTA is devoted exclusively to providing a uniform minimum standard of intellectual Property Law and enforcement under which member nations must operate.

Article 1721 of NAFTA confirms that

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intellectual property rights refers to copyright and related rights. Article 1705(1) of NAFTA sets out the specific protections that Canada must provide to copyright holders, stating specifically that Canada must protect the works covered by Article 2 of the Berne Convention for the Protection of Literary and Artistic Works.

Article 2 of the Berne Convention provides that the expression "Literary and Artistic Works" shall include every production in the literary, scientific and artistic domain, whatever may be the mode or form of its expression."

Accordingly, the Seismic Works fall within the scope of intellectual property rights as defined in Article 1721 NAFTA because they are copyrighted works under Article 2 of the Berne Convention. As we've seen, the Alberta Decisions confirm that the Seismic Works are both an original literary compilation work and an artistic compilation work under Canadian copyright law, which law incorporates the Berne Convention pursuant to Section 91 of the Canadian Copyright Act.

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As such, pursuant to Article 1705(2) of NAFTA, Canada had the obligation to guarantee GSI's rights to authorize or prohibit the public distribution or the communication of the Seismic Works. Importantly, pursuant to Article 7 of the Berne Convention, Canada had the obligation to afford the Seismic Works with these protections for the duration of the life of the author and 50 years after his death. As we've seen, the Alberta Decisions violated these terms.

Article 1705(5) does provide the ability for a State to limit or provide exceptions to the rights afforded under Article 1705 NAFTA. However, these exceptions or limitations must be narrowly circumscribed.

Article 1705 reads as follows: "Each Party shall confine limitations or exceptions to the rights provided for in this Article to certain special cases that do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interest of the right holder."

As appears from the language of

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Article 1705(5), it provides a three-step test to determine whether limitation conforms with Article 1705 NAFTA: One, it must be confined to certain special cases; two, it must not conflict with a normal exploitation of the work; and, three, it must not unreasonably prejudice the legitimate interests of the rights holder.

Article 1705(5) of NAFTA has not been considered by any Tribunals, nor has it been the subject of significant commentary. However, the Panel of the World Trade Organization has considered that Article 13 of the WTO Agreement on trade-related aspects of intellectual property rights, so the TRIPS Agreement, which is virtually identical to Article 1705(5) of NAFTA.

And the interpretation of TRIPS provided by the WTO panel do not bind this Tribunal, but they illustrate what the ordinary meaning of each element of the three-step test set out in Article 1705(5) of NAFTA will likely entail in accordance with the Vienna Convention on the Law of Treaties.

So regarding the first step of the test, the

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WTO panel found that the ordinary meaning of certain special cases means that the exception should be clearly defined and should not be narrow in its scope and reach. And this Decision is CLA-90 in the proceedings for your reference.

And in this case, the compulsory license is issued by the Alberta Decisions, was not confined to certain special circumstances because it was poorly defined and not narrow in scope or reach. For example, the compulsory license has been used to justify disclosing the Seismic Works that were obtained through the Secondary Submissions, even though neither GSI nor its predecessors submitted them under the Submission Legislation.

The compulsory license also allows any individual or entity in Canada to access the Seismic Works for free. And regarding the second step of the test, the WTO panel found that the ordinary meaning of not conflict with a normal exploitation of the work, means that the potential impact of the limitation should not interfere with the ways that rights holders normally extract economic value from the work.

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And in this case, the compulsory license issued by the Alberta Decisions directly conflicts with the normal exploitation of the Seismic Works by GSI. GSI earned its revenues by licensing the Seismic Works to a small number of licensees and limiting the distribution of the Seismic Works to the public.

Once the Alberta Decisions allowed Parties to access and copy the Seismic Works for free, GSI no longer had the customer-based license assessment works too and its business was ruined.

The Alberta Decisions also forbid GSI from interfering with or objecting to that access and copying, eliminating GSI's ability to enforce its strengths.

And regarding the third step of the test, the WTO panel found that the ordinary meaning of not unreasonably prejudiced, the legitimate interests of the right holder must consider the degree of prejudice suffered by the rights holder and whether that prejudice unreasonably interferes with the economic values of those rights. And in this case, the compulsory license issued by the Alberta Decisions

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unreasonably prejudices the rights of GSI in the Seismic Works.

By having its intellectual property rights curtailed, GSI is unable to make a return on its investment in the Seismic Works, which is a very reason for the standard copyright term of protection.

Canada Boards are now direct competitors of GSI, except Canada and the Boards offered Seismic Works to GSI's former customers or potential customers for free, undercutting GSI completely in the competition.

The showing of GSI's business to subsidize the work of offshore oil-and-gas companies by giving them the Seismic Works for free is both excessive and unreasonable. And the compulsory license issued by the Alberta Decisions, therefore, does not meet any of the steps set out in Article 1705 NAFTA; and, as a result, Canada is liable for breach of Article 1110 of NAFTA.

I will now briefly discuss the Claimant's Performance Claim, pursuant to Article 1106(1)(f) of NAFTA. And for ease of reference, this section of our Opening Statement corresponds to Part 4(b) of the

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Claimant's Memorial and Part 4(b) of the Claimant's Rebuttal Memorial.

So the Claimants' Performance Requirement Claim asserts that the Alberta Decisions breached Article 1106(1)(f) NAFTA by enforcing a Performance requirement by GSI to transfer its proprietary knowledge in the Seismic Works to third parties in Canada to develop Canada's offshore oil-and-gas industry.

So Article 1106 of NAFTA provides the following:

"So no Party may impose or enforce any of the following requirements, in connection with the management, conduct, or operation of an investment, of an investor of a Party, or of a non-Party in its territory, to transfer technology, or other proprietary knowledge to a person in its territory."

No NAFTA Tribunals have considered a claim under Article 1106(1)(f); and, moreover, claims under 1106 itself are infrequent, with several Tribunals noting that there is a lack of guidance on how to address the Claim thereunder. But with that said, academics have provided guidance on the interpretation

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of Article 1106.

So authors Meg Kinnear, Andrea Bjorklund and John Hannaford explain that the purpose of Article 1106 is to prohibit performance requirements because they are used to distort international trade and investment flows. That is authority CLA-95 in the proceedings.

In particular, the purpose of Article 1106(1)(f) is to prevent Canada from imposing requirements on foreign investors with respect to technology, transfer, and dissemination, as such requirements may violate international and intellectual property laws. The assessment of Claimant's Article 1106(1)(f) Claim first requires the interpreting the scope of this Article and distilling its elements.

These elements are the Alberta Decisions imposed to enforce a requirement. The requirement was in connection with the management, conduct, or operation of GSI, and the requirement was to transfer technology or other proprietary knowledge to a person in Canada's territory.

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So NAFTA does not define these terms, but we have provided the dictionary definitions of these terms in our pleadings, considering that Article 31(1) of the Vienna Convention on the law of treaties provides that NAFTA shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the Treaty in their context and in light of its object and purpose.

So we refer you to Paragraphs 449 and following of our Memorial for these different definitions.

That being said, prior Decisions of NAFTA Tribunals, such as in the Mobil case, have found that the enforcement of any alleged performance requirement must have a degree of compulsion or legal obligation.

And the Alberta Decisions clearly enforced a mandatory requirement on GSI.

As we have seen, the Alberta Decisions declare lawful desist and set out in the Regulatory Regime, and expressly forbid GSI from mounting any further legal challenges to it.

In other words, GSI was legally obligated to

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comply with third parties copying their Seismic Works contained in the submissions.

It is also clear that the requirement enforced by the Alberta Decisions was for GSI to transfer its proprietary knowledge in the Seismic Works to persons in Canada to expand oil and gas operation in the Canadian offshore.

So Article 1108 of NAFTA permitted Canada to reserve or exempt certain measures from certain NAFTA obligations, including the prohibition on performance requirements in Article 1106. But Canada avoids drawing attention to the exemptions under 1108 because there are several specific exemptions regarding the Canada Petroleum Resources Act that Canada negotiated into NAFTA.

Importantly, Section 101 of the Canadian Petroleum Resources Act, which provides the applicable privilege period for the Seismic survey at issue, is not one of them. So none of the exceptions of Article 1106 apply and the reservation also of 1108 does not apply.

In summary, the Alberta Decisions breach

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Article 1106(1)(f) of NAFTA by enforcing a requirement for GSI to transfer its proprietary knowledge in the Seismic Works to third parties to support the development of the offshore Canadian oil-and-gas industry.

Now I will briefly discuss the legal principles applicable to damages. Article 1135(1) of NAFTA provides that the Tribunal may award the Claimants separately or in combination only monetary damages and any applicable interest or monetary damages and applicable interest in lieu of restitution of property.

Article 1110(2) of NAFTA provides guidance on the quantum of damages for a legal expropriation stating that:

"Compensation shall be equivalent to Fair Market Value immediately before the expropriation took place."

Tribunals have discretion to award the most appropriate compensation for the damage incurred by the Claimants in accordance with international law. That discretion was articulated by the Tribunal in S.D. Myers v. The Government of Canada.

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The Claimants are entitled to be compensated in order to wipe out all the consequences of the illegal act and in an effort to restore the status quo as much as possible, as quoted in S.D. Myers, which is CLA-106 in the proceedings.

PricewaterhouseCoopers was engaged to perform a valuation of the Claimants' losses in Canadian dollars in a But-For Scenario, as of the date of Canada's breaches of Articles 1110 and 1106(1)(f) on November 30, 2017, and PwC additionally performed a valuation of those losses on June 30, 2022, a date closer of the time of the award. And during the Hearing, PwC will speak to the revised damages that they have quantified pursuant to their amended Report filed on February 28.

And in the PowerPoint presentation, we have reproduced PwC's revised valuation for ease of reference.

And my colleague Ms. Lemmens will now make Closing Remarks for the Tribunal. Thank you.

PRESIDENT WALLGREN-LINDHOLM: Thank you.

MS. LEMMENS: Thank you. I'll be brief

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because I think we are running out of time, and it's lunchtime. We have already said enough about how the Alberta Decisions have destroyed GSI's business and resulted in the substantial deprivation of the investments of the Claimants.

The only question now, as I said in my earlier submissions, Tribunal, is that it is a question for you to decide how much compensation Canada owes to the Claimants for their losses. We close on the joint list of issues and our answers to those questions.

So if we could just walk through those, Ms. Lyseng.

So were the Claimants' Claims filed within the three-year time Limitation Period provided in Articles 1116(2) and 1117(2) of NAFTA? We say yes. The Limitation Period began to run on November 30, 2017, when the Alberta Decisions became final. So when this Claim was commenced in 2019, it was well within the time period.

Do the claims originate from the Alberta Court Decisions? We say yes. The Alberta Decisions

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constitute the actionable breach and stopped GSI's ability to enforce its copyright resulting in their losses.

Are the Alberta Decisions an independent actionable breach? We say yes. They are not intertwined with the Regulatory Regime. It's very clear that it took a court decision to determine that two competing statutes would have to be resolved in a particular way. No one could determine that ahead of time.

When did the Claimants acquire actual or constructive knowledge of the alleged breaches? We say when the Alberta Decisions became final and no longer appealable. That was on November 30, 2017.

There was no further chance that Canada would change its law and solve the problem that the Claimants are now stuck in with no compensation.

Did the Claimants comply with the waiver requirement provided in Article 1121? That has some sub questions. Did the Claimants act consistently with the waiver requirement despite continuing existing private claims or contractual claims against

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private parties after the Notice of Arbitration? We say yes, because GSI has no ongoing claims against private parties with respect to the same measures as against Canada.

As my colleague Ms. Bastille-Parent explained, there were two abandoned proceedings sitting on the court record that had not had discontinuances filed. They were considered in their dismissal as being res judicata by the Newfoundland courts, due to the Alberta Decisions.

What was the status of the Claimants' Claims against Canada in the Canadian Courts at the time of filing of the Notice of Arbitration and is it inconsistent with the waiver requirement? Our answer is all claims against Canada, including all public agencies, were discontinued before the filing of the Notice of Arbitration in this proceeding, except for those two actions that I mentioned that had been abandoned as they were res judicata from the Alberta Decisions.

When we turn to the Merits questions, at expropriation, did the Alberta Court Decisions

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expropriate the Claimants' investment in breach of Article 1110? We say yes. The Alberta Decisions did expropriate their investment in breach of Article 1110 of NAFTA.

Under what conditions can a judicial decision constitute an illegal expropriation under NAFTA? We have a further explanation, and my colleague Mr. Lanctôt-Fortier had explained this in more detail, that a denial of justice is not required in the underlying court decision in order to constitute an actionable breach under Article 1110 of NAFTA.

The Alberta Decisions constituted an expropriation that resulted in a substantial deprivation of the Claimants' investments. They did not satisfy one or more of the exceptions to expropriation, and they were inconsistent with Chapter Seventeen and were clearly incompatible with the rule of international law.

It is not necessary for the Claimants to show a denial of justify for there to be an expropriation from a court decision.

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Did the Alberta Court Decisions amount to a taking of the Claimants' investment in breach of Article 1110? We say yes, the Alberta Court Decisions substantially deprived the Claimants of their investments in GSI when they became unable to enforce their intellectual property rights in the Seismic Works.

What is the relevance of Chapter Seventeen and Article 1110(7) which relates to intellectual property to GSI's claims before the Tribunal today?

We say that Article 1110(7) of NAFTA confirms that interference with intellectual property rights can give rise to a violation of 1110 where that interference is inconsistent with Chapter Seventeen.

Is GSI's claim that the Respondent expropriated its trademark admissible? We say yes. As evidenced by the loss of GSI's goodwill in its business.

Turning to the performance requirements, Article 1106 of NAFTA, did the Alberta Court Decisions breach Article 1106? We say yes. The Alberta Decisions breached Article 1106(1)(f) by enforcing a

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performance requirement for GSI to transfer its proprietary knowledge of the Seismic Works to third parties in Canada to develop Canada's offshore oil-and-gas industry.

Did the Alberta Court Decisions enforce a requirement to transfer proprietary knowledge of GSI? Absolutely they did. Pursuant to an interpretation of Article 1106(1)(f) that accords with the Vienna Convention on the Law of Treaties.

With respect to the disclosure of GSI's proprietary knowledge, is Article 1106(1)(f) or Article 1106(3) applicable? Article 1106(1)(f) is applicable. Article 1106(3) does not apply. That's the conditioning on an advantage. We say that does not apply.

For damages, what damages did the Claimants suffer as a result of the alleged NAFTA breaches? So did the alleged NAFTA breaches cause the alleged damages that we have claimed by the Claimants today? We say yes. The damages suffered by the Claimants are a direct result of the Alberta Decisions. One can only think of what difference it would make if the

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Alberta Decisions had had a different outcome where copyright overrode the CPRA, and they would have enforceable copyright today and they would be able to claim on their copyright infringement and continue to protect their Seismic Data. They are unable to do that.

Are the claims for damages brought by the individual Claimants on their own behalf admissible under Article 1116? Yes. The individual Claimants' damages, those being the shareholdings, the Loans, and the remuneration, are all admissible under Article 1116, even if Article 1116 of NAFTA itself does not prohibit investors from claiming for indirect or reflective loss.

In any event, the Claimants are not claiming reflective losses, and they have put GSI's claim forward under Article 1117, and in the alternative, their own personal claims under Article 1116 when it comes to the shareholdings.

What was Paul Einarsson's dominant and effective nationality at relevant times, and does he meet the requirement for being an investor of another

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party for the purposes of Articles 1101 and 1116 of NAFTA? Paul Einarsson's dominant and effective nationality, we submit, is American. He meets the requirements to be an investor of another party.

Those are all of our submissions for our Opening Statement. Thank you for your time, Tribunal.

PRESIDENT WALLGREN-LINDHOLM: Thank you. I understand you stayed within the set time. Thank you very much.

I have a question, and that is, we are late on the schedule for reasons not attributable to the Parties. And my question is, shall we stick to 1 hour, 15 minutes, or would the Parties prefer to be back in an hour?

MS. LEMMENS: I just note that there is some additional time built into the schedule in the following days. So, if you look at tomorrow, it appears that we would end at about 5 p.m., as opposed to the 5:30. And if you look at Wednesday, there was a slight calculation error on the end of Wednesday. So you'll see that the last thing is Nigel Bankes' cross-examination, starting at 3:40, for 50 minutes,

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and supposedly that would end at 5:30. But that is actually an hour and 50 minutes.

So although we may have lost a little bit of time. I don't think that we are in terrible shape if we have to use some of that extra time in the coming days.

PRESIDENT WALLGREN-LINDHOLM: Thank you.

Would you like to eat 60 minutes or 75 minutes?

MR. LUZ: If Madam Chair would permit the -- the answer to the original question was, yes, we would like the full amount of time for the hour, 15 minutes of lunch, yes.

PRESIDENT WALLGREN-LINDHOLM: Yes. Okay.

So then we have the blessing to it properly here at this end also. Thank you.

(Whereupon, at 12:57 p.m., the Hearing was adjourned until 2:15 p.m., the same day.)

AFTERNOON SESSION

PRESIDENT WALLGREN-LINDHOLM: So we will now proceed to Canada's Opening Statement, but before that, Claimants will introduce a newly-arrived person.

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MS. LEMMENS: Thank you. Good afternoon, Madam Chair, and Tribunal Members. We have joining us now Chris Goldring who is a Director of GSI. He is on the List of Participants.

PRESIDENT WALLGREN-LINDHOLM: Yes. Yes. I remember that. Thank you.

So is there anything else before your Opening Statement?

MR. LUZ: I think we are ready to go.

PRESIDENT WALLGREN-LINDHOLM: Good. Please go.

OPENING STATEMENT BY COUNSEL FOR RESPONDENT

MR. LUZ: Okay. Thank you, Madam Chair.

I'll just check with our tech -- yes -- just to see that it was going to appear on the screen before me.

So thank you, Madam Chair and Members of the Tribunal. It is an honor to appear before the Tribunal to represent the Government of Canada in this important dispute under international law and NAFTA Chapter Eleven, and the fact that this is a dispute where the Tribunal must apply international law and

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the provisions of the NAFTA Treaty must be kept at top of mind.

This Tribunal is not a Court of Appeal which has jurisdiction to review and pronounce upon the correctness of a judgment rendered by a Canadian court interpreting Canadian statutes, a judgment which was already reviewed by an appellate court and declined leave to appeal to the Supreme Court of Canada.

The Tribunal is also bound by the jurisdictional constraints of the NAFTA, which includes a strict Limitations Period, within which claims against Government Measures must be brought, a rule that cannot be evaded by muddying the waters on what the Measures are the -- truly the source of the breach and the damages alleged to be suffered by the Claimant/Investor.

Canada is fully confident that the Tribunal is cognizant of its role under international law and adhering to its jurisdiction under the Treaty. And Canada respectfully submits that, based on those Standards, there can only be one outcome to this Arbitration, and it is dismissal in its entirety.

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Now, the Claimants' NAFTA Claim is fundamentally flawed on many levels, and if I may be blunt, it was doomed from the outset. Why? Because the dispute at the heart of this case has been going on between Canada and the Claimants for decades before they belatedly launched this NAFTA Arbitration in April 2019, and when I say "decades" that is not hyperbole.

To start, Canada's Opening Statement today I'm going to explain the long history of the dispute between GSI and Canada because these factual details establish what this NAFTA Claim really is all about.

It's Canada's Regulatory Regime and the long-standing practice of the Offshore Petroleum Boards to release nonconfidential Seismic Data materials to the public, Measures which are all completely outside the jurisdiction of this Tribunal.

Now, the Claimants have been complaining about the Regulatory Regime and the practice of the Boards to release copies of Seismic Data once the privilege period has ended. They have been complaining about it since GSI was incorporated in

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1993. It was in that year that one of Claimants Mr. Davey Einarsson, whose passing last year we recognize with sympathy, and whose estate is continuing this claim.

It was in 1993 that Mr. Einarsson started investing in GSI Seismic Data business after acquiring from Halliburton a library of offshore Seismic Data that had been collected in the 1970s and 1980s from Canada's east coast and far north.

But as the Tribunal will see later in my presentation, a few months after that 1993 purchase, GSI started threatening legal action against the Newfoundland Petroleum Board because it was releasing copies of Seismic Data materials that GSI alleged were confidential and proprietary.

GSI threatened to sue the Newfoundland Board again in 1998, this time arguing that the Seismic Data material submitted to the Boards were not just confidential and trade secrets but also subject to copyright.

But despite these threats, the Newfoundland Board did not stop its practice of releasing copies to

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the public once the statutory confidentiality period was over. To the contrary, the CNLOPB, the Newfoundland Board has consistently maintained since its creation in 1988 that it had the Legal Authority to do so under the Canada-Newfoundland Accord Act.

And the same goes for the other two Offshore Regulatory Boards, the Nova Scotia Board and the National Energy Board, now known as the Canada Energy Regulator.

Both the Nova Scotia Board and NEB also maintained for decades that they had the Legal Authority to release copies of nonconfidential Seismic Data under the Canada-Nova Scotia Accord Acts and the Canada Petroleum Resources Act respectively.

And the evidence shows beyond doubt that the Claimants have known this since Day 1.

Now, GSI certainly did not like the Boards' interpretation of the authority under the Regulatory Regime and complained about it constantly. But throughout the 1990s and 2000s, the Claimants chose to avoid seeking injunctive or declaratory relief against the Boards in order to resolve the question of whether

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GSI's interpretation of the Copyright Act and the Regulatory Regime was correct or not.

Instead, knowing the rules of the game, the Claimants chose to continue investing in their Seismic Data business carrying out two dozen new speculative, or nonexclusive offshore surveys between 1997 and 2008, whose conditions of approval explicitly stated that the submitted data and Reports would eventually be released to the public.

Now, unfortunately for the Claimants and many other companies at the time, the 2008 Global Financial Crisis hit GSI very hard, and essentially within a couple of years, GSI no longer had a business, but because of extrinsic market forces and its own scorched-earth litigation strategy, not because of the Regulatory Regime or anything that the Boards ever did, and certainly -- certainly not because of the Alberta Court Decisions, which occurred several years after GSI had already ceased to be a going concern.

So I'm going to complete Canada's first part of the presentation in the period around -- between

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2011 and 2014 because it was at that time after about 20 years of threatening to do so, GSI finally launched the claims directly against the Boards and the Government of Canada alleging that the Regulatory Regime was what expropriated the Copyrights and GSI's business.

Now with that essential factual background, my colleague, Ms. Sylvie Tabet, will take over, and she's going to explain the legal ramifications of the facts that I have described.

And the first insurmountable problem for the Claimants is the NAFTA Strict Limitations Period, which, as I said, prohibits claims against Government Measures which took place more than three years prior to the NAFTA Notice of Arbitration.

Indeed, the Claimants have already conceded that they can't challenge the Regulatory Regime or any actions of the Boards. But as Ms. Tabet will explain, the Claimants' concession destroys the viability of their entire case because it's obvious that the gravamen of the claim and has -- is and always has been the Regulatory Regime and the practice of the

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Boards to release copies of Seismic Data.

So what the Claimants have done in their NAFTA case is create a legal smokescreen in an effort to extract hundreds of millions of dollars of damages from the Government of Canada, arguing that it's the Alberta Court Decisions themselves that expropriated GSI's Seismic Data business.

But as Ms. Tabet is going to explain, it is not only wholly without merit but it is completely contradicted by the Claimants' own words. What the Claimants are really trying to do is appeal the substance of the Alberta Court Decisions and their interpretation of Canadian law. And that's the second insurmountable problem for the Claimants.

As Ms. Tabet will explain, under international law and NAFTA Chapter Eleven, a domestic court judgment that is not tainted by outrageous irregularities so as to constitute a denial of justice cannot be found to constitute an expropriation under Article 1110. There is simply no violation of international law here.

The Claimants received full due process and

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a full hearing on a complicated legal question that had not been litigated previously, and no one can reasonably look at the Alberta Court Decisions and describe them in any way that resembles a breach of international law.

Now, in a few days the Tribunal is going to hear from Professor Bankes and Professor Hutchison on behalf of the Claimants, and they explained in their Expert Reports the aspects of the Alberta Court Decisions that they found problematic or they disagree with.

The Tribunal is also going to hear from Mr. Barry Sookman, who also explains how the Alberta Courts arrived at their conclusions on a complicated issue of First Instance.

Undoubtedly, Tribunal will find this interesting and illuminating, but ultimately their testimony does not matter because it is not the role of this Tribunal to act as a Fourth Court of Appeal and adjudicate whether the judges were correct in their findings under Canadian law or to quibble with the wording of the judgments. It is just not the

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standard that this Tribunal has to apply.

Ms. Tabet will conclude her part of the presentation talking about NAFTA Article 1106, and the last part of Canada's presentation will address the issues of damages.

My colleague, Ms. Elena Lapina, will start with a very short explanation as to why the individual Einarsson claims under NAFTA 1116 are inadmissible, and then I will return to explain why, if there was to be found a breach of the NAFTA, the Claimant must be awarded zero damages because of a failure to demonstrate causation between the breach and the Damages claimed and for providing the Tribunal with a patently unreasonable quantification of its damages.

So, Madam Chair, Members of the Tribunal, let me go back a little bit because this is going to show the Tribunal how the rules on the collection of Seismic Data in the offshore have been in place and known to the Claimants years before the NAFTA was even into force.

Now, keep in mind, companies wanting to collect Seismic Data from the Canadian offshore have

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always been required to apply for an authorization, and as a condition of getting that authorization, had to submit certain reports, maps, and other data, to Government regulators as a condition of being able to gather that data and license it to oil companies to make a profit.

It is important to keep in mind that the Regulatory Regime has always been based on a balance between industry needs and public interest in promoting further exploration. The Canadian offshore is public land, as Crown land as is described in Canada. The seabed from where the data is gathered is owned by Canada, not the Claimants or any other private entity; hence, the ability of Canada's right to be able to set the terms and conditions under which companies may access and derive profit from its land.

These conditional approvals have been around since the '70s.

We will just quickly go through a couple of them. There's an example from a Permit from 1976 for a Beaufort Sea Project done by the old GSI, or Delaware GSI, in which the current GSI purchased in

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1993.

Conditions in the Permit are pretty clear: You must submit certain reports and all data acquired from this project will be released from confidential status five years after completion of the Project.

Here is another one from 1979 with the same condition, that it will be released from confidential status five years afterwards.

Canada was able to dig up many of the other Permits that have the same kinds of conditions. You can find them in Exhibits cited at Paragraph 86 of Canada's Rejoinder.

But in 1982, the Canada Oil and Gas Act formally enshrined a five-year statutory confidentiality period for both exclusive and nonexclusive Seismic Data. Just very quickly, the difference between "exclusive" and "nonexclusive," exclusive is essentially on contract on behalf of an oil company whereas nonexclusive is where a company shoots and then seeks to license it to as many licensees as it can get, and that is primarily the source of the dispute today.

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Now, you can see from the legislative commentary back then as to what the intention was after allowing an operator a reasonable period of time within which to evaluate portrayed as data, it is made freely available to other companies and to Government, and university research geologists to generate new exploration concepts and to stimulate a wide range of company interest in acquiring new lands and continuing exploration of the area in question.

And the legislation allows publication or release following the periods described below, five years.

That's how the Regulatory Regime worked back then and still works today.

Take a look at this January 1984 publication from COGLA, as my friend across got it exactly right, the Canada Oil -- now I can't even say it. Canada Oil and Gas Lands Administration. It is Exhibit 226.

This is 1984 where it says -- it contains a listing of geophysical and geological Reports that have been released in accordance with the provisions of the Canada Oil and Gas Act. It says right there:

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"Reproduction of microfilm data will be generally done by a commercial firm who will bill the purchaser directly."

So even in 1984 anything that was in this publication you could get a copy of. And we will look at the next page where you can see a long list of GSI Projects that were already publicly available for copying in 1984, and many of these Projects -- or I think all of them -- are the ones that GSI would eventually purchase from Halliburton in 1993.

And we know that in the 1980s Claimant Davey Einarsson and a colleague from Delaware GSI, John Clink, lobbied the Government strongly to try and change that rule asking that it be held confidential for a greatly extended period of time -- well, if not, in perpetuity, greatly extended period of time such as 15 years our normal restriction with the Licensee in other areas of the world and presumably it would have little or no commercial value.

And the next year, February 1987, is a letter from the Claimant Davey Einarsson expressing disappointment that the five-year Confidentiality Rule

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was not changed in the legislation. And that's correct. The next year in 1986, the CPRA, again enshrined a five-year confidentiality rule for Seismic Materials.

Now, that rule, Section 101(7)(d)(2) of the CPRA is the same rule that applies today. It hasn't changed since 1986.

What did change is, in 1988, COGLA decided to exercise its administrative discretion and keep nonexclusive Seismic Data confidential for 15 years, something that Mr. Bharat Dixit, formerly of the NEB and CER, has testified about. That 1988 15-year confidentiality rule has applied ever since.

Chris, you can go to the next slide.

It's just a quick summary of that jurisdiction.

Five years of confidentiality has also been the statutory default rule for the Nova Scotia Offshore since 1987. You can see, in Section 122(5)(d)(ii) of the Canada-Nova Scotia Accord Act, the same rule, five years of confidentiality.

But, as Mr. Makrides of the Nova Scotia

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Board has testified, in 1992, the Nova Scotia Board decided to exercise its discretion and keep nonexclusive Seismic Data for 10 years. And you can see it in the guidelines, right here, where it says, under "Confidentiality," the 10-year Rule. And then the second line from the bottom:

"Reports and data are made available to the public at the termination of relevant confidentiality periods."

If you go to the next slide, that's, again -- that's been the rule ever since 1992.

Now, the other jurisdiction, Newfoundland, same rule, 1987, Canada-Newfoundland Accord Acts, Section 119(5)(d)(2), enshrined same rule, five years statutory rule.

And we can look back to a 1988 publication from the Board. If it's too difficult to read the legislation, the Board basically provided the public with an explanation of what this meant.

You can go back to it. Thank you, Chris.

That publication from 1988 contained a list of geophysical reports, and data have been released by the Offshore Petroleum Board pursuant to

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Subsection 119(5)(d) of the Accord Act, which we just looked at. And again, in that publication -- this is 1988 -- how may copies of the data be obtained?

"Reproduction of released materials may be arranged at the expense of the requester through the Canada-Newfoundland Offshore Petroleum Board."

And in that publication, again, a list of GSI's nonconfidential programs that were available for copying at the time.

This was not some -- so if you go to the next slide, this was not some secret. Everybody knew this is how you obtained copies of Seismic Data once the privileged period or the confidentiality period had expired. It was just an example of one that we found from a letter from British Petroleum to the Newfoundland Board asking for copies of data. Just write to them and ask them.

Now, the five-year statutory rule stayed in place until 1999. As Mr. Bennett from the CNLOPB said, it was in that year that the Board decided to extend the confidentiality period to 10 years.

Now, if you go to the next slide, there is

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the summary of the Regulatory Regime that has been in place for decades in which the Claimants knowingly operated.

So let's get to 1993, when GSI purchased a Seismic Data library from Halliburton. So again, the rules of the game were not a secret. If we look in 1992, there was a letter from the CNLOPB to Halliburton explaining to them the five-year confidentiality period is pursuant to the Accord Acts, and one of the Projects that Halliburton had shot in the 1980s had now been listed in the August 1992 publication "Released Geophysical and Geological Reports". And here is that August 1992 publication, saying exactly the same thing as what we had seen previously.

The Board felt that it had the authority to release this material and it allowed copies to be made. This was not a secret.

If we look in December 1992, here's a publication from the National Energy Board at the time. Same thing. Reproduction will be done by a commercial firm who will bill the purchaser directly,

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and, again, a long list of GSI programs that, in December 1992, were available from the National Energy Board right down the street.

So this brings us to 1993, when Mr. Einarsson purchased that Seismic Data library.

And we know that he knew what was happening because, in November 1993, GSI threatened to sue the Newfoundland Board. And as you can see, there's a letter from GSI's legal Counsel dated November 3, 1993, writing to demand that the CNOPB desist from releasing any more of GSI's Seismic Data, "and if the Board persists in releasing further data, GSI will have no choice but to consider taking appropriate legal steps to protect its interests, including legal action against the Board for damages."

Now, we know by this letter that GSI was actually consulting the Board's publications that I had previously shown the Tribunal, the reference right there in the letter. So they were obviously looking at the publications and obviously knew that copies were available, otherwise, why would they be writing this letter? And they took the position that "we are

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of the position that the Board has misconstrued its authority to release geophysical data taken from the Offshore Atlantic Area, and the subsections upon which the CNOPB relies do not authorize blanket disclosure."

That is, of course, Section 119 of the Accord Acts that we looked at before.

Now, I'm not going to go through this letter. The Tribunal can read it for itself at one point. But I do want to point out something, in particular, on Page 7 of the letter, where the argument was made that GSI said:

"The person who collected data at all times remains the Owner of this information, and there is no statutory provision which confers ownership upon the CNOPB or confers upon it a power to expropriate this information. Consequently, unless the CNOPB has an express statutory authority to release geophysical data, any disclosure without consent the Owners is a violation of their proprietary rights in this information."

And the lawyers go on to say in their analysis, explaining that the Board does not -- in GSI's view, the Board does not have the authority to

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release it, and doing so is a violation of their Confidential Information. Their lawyers say that:

"GSI should be successful in applying for judicial review under the Federal Court Act and should also be successful in applying for any interlocutory injunction prohibiting the CNOPB from releasing further data."

So here we are, on the eve of the NAFTA coming into force on January 1, 1994. And GSI has purchased a Seismic Data library that it already knew was available to the public for copying. And they're threatening an injunction and judicial review against the Board if it released any more of GSI Seismic Data.

What happened? The Board continued throughout the '90s what it had been doing since 1988, releasing Seismic Data to the public after the expiration of a statutory confidentiality period.

GSI did not seek that interlocutory judgment or judicial review, as mentioned here, but took the conscious decision to continue investing in their Seismic Data business, knowing the whole time the rules of the game.

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Now, Madam Chair, I'm just going to go very briefly into confidential session. It shouldn't take too, too, long. I don't think there is anyone that needs to leave the room.

(Comments off microphone.)

MR. LUZ: Thank you. Again, apologize.

This is one of the ways we try and do it, so it will be brief, and apologies for the short delay.

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OPEN SESSION RESUMES

MR. LUZ: We're good to go.

So again, throughout -- can we put the -- yes. Right.

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So again, throughout the '90s, the Boards were very clear. Now, here is the Newfoundland Board's January 1996 guidelines. These were guidelines that all geophysical operators had to consult in order to be able to carry out their seismic projects in the offshore. It was very clear under the heading "release of data," that, under the Accord Acts, reports and data from most technical programs ceased to be privileged five years following the completion of the program. And, again, the publication referred to a full listing of the Reports that had been released at that time.

If we go to the next slide, you can see, again, an updated March 1996 publication that has said the same thing that we have already looked at. It's a long list of GSI programs that were available for copying to the public. Again, no interlocutory order or judicial review in court against the Boards by GSI.

This is an important time period because, in 1997, that's when GSI decided to start investing in new nonexclusive seismic surveys in the Canadian offshore. Prior to this, it had been all based on

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reprocessing and licensing data that it had purchased from Halliburton, but they wanted to start new projects.

So here's the first authorization in July 1997 for a speculative 3D survey in the Jeanne D'Arc Basin. You can see, right on the front page of this approval, that: "We will remind you that the financial report should include digital copies of shot point location data and seismic traces. Details are described in the guidelines, Section 5," which we had just looked at previously. "The data from this survey will be made publicly available five years following completion of the fieldwork."

And, again, there's another part from the attached approval from this exhibit, R-250, that shows the requirement that, as a condition of approval, you had to submit the data, and that same legislation contains the statutory privilege period after which it could be released to the public.

Those conditions, that you see here and were repeated in all of the subsequent programs that GSI received approval for, that's at the heart of the quid

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pro quo of the Regulatory Regime. An operator like GSI is allowed to gather Seismic Data from public land on the condition that it submit that data and that -- or some of that data, certain requisite data, and that it can be released to the public after the expiration of the confidentiality period, 10 or 15 years, depending on the jurisdiction. These surveys are not cheap to carry out. We know that. So

GSI had to decide, in 1997, if it wanted to go ahead, invest in this kind of project, knowing full well what the Regulatory Regime required. They decided to proceed with eyes wide open. Now, again, we know that GSI consistently complained about this, particularly in Newfoundland because, at the time, it was still a five-year confidentiality period. But the Board was resolute in explaining to them it had the authority to release under -- data under the Accord Acts. And you can see this in a letter that the Board wrote on November 27, 1997.

Again, referring to the Accord Acts, the Board said, in 1997: "The Board's current practice is to limit release of this data to copies of paper

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sections and the accompanying Reports. The Board does not have the power to limit the release of such data to oil companies only" -- which is what GSI had been asking for. "Once the period of confidentiality has expired, the Board has no choice but to allow the data to fall within the entire public domain." So it couldn't just be limited just to oil companies.

It's a pretty clear position on what the Board thought its authority was and what it was going to do, and, again, the next year, knowing this full well, GSI applied for another project with the same condition.

So that takes us to 1998, July. And GSI again threatens legal action against the Board, the CNOPB, but this time raising specifically the issue of copyright. In this July 27, 1998, letter, which is Exhibit R-531, tells the Board that GSI's position that "all geophysical information with which we have been filing on an ongoing basis with the CNOPB is Confidential Information which, in addition, enjoys copyright protection. By this letter, we are advising the Board that all information filed by us with the

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Board is not to be released."

Now, I'm not going to go through the 16-page legal analysis, but let's just focus on what the GSI said about copyright.

Go to the next slide.

GSI took the position that Seismic Data would likely be considered -- GSI would constitute material in which a copyright may subsist. And if it can be established that GSI is the rightful author of the compilation, GSI may be able to prove that the Boards infringed upon its copyright. And it goes on to say that, if the Boards release GSI's Seismic Data, the infringer, the copyright infringer, in the case of data released by the respective Boards, would be the Board.

Now, GSI's lawyers, Code Hunter Wittmann, ends with conclusions and recommendations similar to the one that we saw from 1993: "GSI should be successful in seeking an order directing the Newfoundland Board and the Nova Scotia Board, CNOPB and CNSOPB, to not disclose the confidential geophysical information from the public."

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But did the Boards change its position in response to this latest legal threat? No. If you look at the January '99 guidelines from the Newfoundland Board, again, affirmed its authority under the Accord Acts to release Seismic Data and, again, a reference to the publicly available materials for which it would be able to obtain copies.

And to put a final point on what the Board's position was, June 18, 1999, the Board wrote directly to the Claimant Davey Einarsson: "While the Board understands your position, the Board does not agree with the legal analysis offered on your behalf respecting the release of the subject data provided by GSI. The Board believes that the disclosure of information obtained as a result of carrying on a work or activity is authorized under our Accord Acts. I refer in particular to Section 119" -- as we saw before, and then Section 115 is the Provincial Act -- The highlighted language says it pretty clearly: "The Board intends to continue the practice of making such information available to the public following the expiry of the specified periods, except

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for nonexclusive data which period has been extended to 10 years. I trust this will clarify any confusion respecting our position on this important matter."

Madam President, Members of the Tribunal, this is in June 1999, just short of 20 years before GSI filed its NAFTA Claim. There's just simply no way for GSI to escape the reality that the position on copyright, GSI's position on copyright and the Board's position on its authority under the Regulatory Regime, were officially at logger heads. The Nova Scotia Board didn't change its practice either.

Again, if we just go on to the next slide, and I'll go through this quickly.

The Nova Scotia Board had been -- had been issuing guidelines that say exactly the same thing, that any released information may be sent out for reproduction at the request and expense of the user.

And if we look to the next slide, this is an approval that was given to GSI in 2001, which again said, explicitly, that it would be held confidential for at least 10 years, hard copy of data, reports and maps will be made available for public disclosure at

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the termination of the relevant confidentiality periods.

But instead of seeking an injunction or declaratory relief, as GSI's lawyers had recommended, GSI decided to keep investing.

Now, in the year 2000, GSI did decide to launch an action in the Federal Court of Canada seeking information on the names of the companies that were actually borrowing or receiving copies of GSI's Seismic Data. And GSI actually won that in 2003. And it was actually referenced by the Claimants in their Opening Statement this morning, the Federal Court of Canada Decision saying that the Boards had to release that information. And, in fact, the Boards subsequently almost immediately after this Judgment started providing GSI with the names of the Companies that had acquired them.

But what the Claimants did not point out in their Opening Statement when they cited to this Judgment was the other part of the Federal Court of Canada's Decision in 2003, where it noted that each of the three Boards had adopted the practice of releasing

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copies of the data deposited to third parties.

So here we have full knowledge. I mean, the Court is already saying that everyone knows this, but we know that it had been known prior to this. But now here is the Court saying it.

But here is the key part. Paragraph 75 of that Judgment, saying that on the expiration of the five-year period, which is in Section 119 of the Canada Accord Act, "it was entirely open to the Canada-Newfoundland Board to make such information or documentation available to a requester."

This is the Federal Court of Canada in 2003.

That's what the Board had been arguing all along. And the Court vindicated that position. To be sure, the question of copyright wasn't actually before the Court in this particular Judgment, but it's another example of how GSI's ongoing assertion of copyright and the Regulatory Regime were on a head-on conflict more than 20 years ago. Still no injunction, no declaratory relief, and no NAFTA Claim.

In 2007, GSI did start the litigation route. Not directly against the Boards but against its own

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customers, a strategy which would eventually contribute to GSI's own demise. And that was in April 2007, when GSI launched a claim against one of its best customers EnCana.

Now, in addition to contractual breaches, GSI claimed that EnCana had infringed its copyright in the Beaufort Sea data which EnCana had obtained from the National Energy Board. In its Statement of Defense, EnCana contested that Seismic Data was actually subject to copyright. But even if it was, the Regulatory Regime made it clear that GSI would have had the expectation that the Board was going release the material.

So 2007 is when the Regulatory Regime versus the Copyright Act officially hit the Courts. And this was the case that eventually would become the foundation of the Common Issues Trial that went on later.

Now, GSI launched a spree of new lawsuits against its other customers: Suncor in 2009, Husky, 2010, and many others. And the Claimants have conceded that those lawsuits had a devastating impact

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on its business, which -- a point I'll come back to later on in Damages but -- the Claimants have conceded it.

It wasn't until 2011 that GSI filed direct claims of copyright infringement and expropriation against the Boards and the Government of Canada.

Now, my colleague Sylvie Tabet is going to be here shortly to explain the legal implications of all of this. But in 2011 -- if we go to the next slide, Chris. Thank you.

This is when GSI filed a direct claim against the Newfoundland Board and the province of Newfoundland and Labrador challenging the authority of the Board to release Seismic Data and accusing it of copyright violation, including lost sales.

So if we go to the next slide, let's just compare what had been argued from 1993 and in their claim in 2011 because really, they're very similar. In 1993, GSI was saying that the Board had no power to expropriate the information. And in the Statement of Claim in 2011, again, seeking a claim against an unlawful or wrongful appropriation by the Board and

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the Province.

They also referred to a breach of confidentiality in 1993, and made the same claim in 2011. Let's compare it to the 1998 letter from GSI's Counsel Code Hunter Wittmann. That was the first time that the lawyers had asserted a copyright and copyright infringement by the Board. And here it is again more than a decade later in the claim for an infringement of copyright against the mandatory disclosure.

Back in 1998, the lawyers had said these were trade secrets of GSI's. In 2011, a conversion of GSI's trade secrets in its Claim.

Now, again, these were a long series of lawsuits between 2011 and 2014. In 2013, GSI amended its Statement of Claim to ask for a Direct Expropriation because of the Regulatory Regime. GSI was alleging that it was the Regulatory Regime that expropriated GSI's Seismic Data business. They made the same argument against the National Energy Board and the Government of Canada, 2012.

Again, they are just simply saying that it's

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the Regulatory Regime that was an expropriation of GSI Seismic Data business. And then sort of summing it all up, there were about two dozen lawsuits and Canada was and the Boards -- were defendants in many of them. I have sort of lost track.

But the 2014 Statement of Claim, which is Exhibit R-10, tells the Tribunal quite a bit because that's a full Expropriation Claim where GSI is arguing that it is, as a result of the legislation and the wrongful acts of the Boards, that expropriated GSI's Seismic Data business.

And Ms. Tabet is going to come and explain this, but that Claim actually has all of GSI's Seismic Data. The same Seismic Data that they are claiming now that the Alberta Court Decisions expropriated. But in 2014, they were arguing that it was the Regulatory Regime that expropriated GSI. This is the essence of the fault in the Claimants' case.

Now, Madam Chair, there is many other points of rebuttal that I would like to make, but I do want to let my colleague Ms. Tabet stand up, but there is just one thing. I just wonder -- I'm just going to

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refer the Tribunal to the Judgment that the Claimants referred to. It's it is Exhibit C-205. It's a Federal Court of Appeal Judgment where the Claimants had said they tried to sue the Boards with respect to their Seismic Data, but the Court ruled that it was premature.

Canada addresses this in Paragraph 66 of our Rejoinder because it really is a red herring. The Claimants, as was explained correctly this morning, sought judicial review of the NEB's -- of the approval of a National Energy Board -- of a project that took place in 2008 and would not be publicly available until 2023. And the Court decided, well, it is premature to rule on whether the statute allows that to happen.

What about all the Seismic Data that had been released up to that point? I mean, GSI had known for two decades that Seismic Data was being released. And they had been threatening the Boards with legal action to prevent them from continuing to release it. So that misguided legal attempt on data that wasn't going to actually be public for another

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15 years doesn't help the Claimants at all because throughout this entire period, the Boards had been releasing copies of the Seismic Data to the public pursuant to its statutory authority. And the Claimants knew it. And they continued to invest in the Seismic Data business knowing the rules of the game.

Now, with that, I'll turn over to Ms. Tabet, and she's going to explain to you why this compels a conclusion that the entire claim has to be dismissed. Thank you.

MS. TABET: Thank you.

(Comments off microphone.)

MS. TABET: Madam President, Members of the Tribunal, good afternoon.

In my presentation today, as Mr. Luz indicated, I will first address Canada's objection to the Tribunal's jurisdiction ratione temporis. And I will pick up on Mr. Luz's presentation and explain that, notwithstanding the Claimants' efforts at repackaging their Claim for the purpose of this NAFTA Arbitration, the NAFTA Claim is time-bar because the

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essence of the dispute between the Claimants and Canada is about the Regulatory Regime and about the disclosures and copying of the Seismic Data under the regime, and all of this dates back, as you've heard, from the late 1990s.

And the second part of my presentation, I will address the Merits. And I will explain that, even if the Tribunal were to find that it has jurisdiction, it must nevertheless dismiss the allegations of breach of NAFTA Article 1110 and Article 1106 through the action of Canada courts.

So turning to time bar, as you've heard this morning, the Claimants have presented their Claims in this NAFTA Arbitration as a challenge to the Alberta Court Decisions. They identified the Challenged Measure as being the Decision of the Alberta Court of Queen's Bench on the Common Issues Trial. The unsuccessful appeal to the Court of Appeal and the denial of leave to the appeal to the Supreme Court of Canada.

The Parties have referred to all of this as the "Alberta Court Decision," so I will refer to it in

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the same way in my presentation today.

You've heard Claimants' Counsel repeat again this morning that they are not challenging the Regulatory Regime, nor have they challenged any individual instances of disclosure or specific actions by the Boards as breaching NAFTA.

They haven't done so because they cannot bring a claim against any of this. Such claims would be time-barred. So their case relies solely on the Alberta Court Decisions. On that basis, they argue that the Tribunal has jurisdiction because the Alberta Decisions are within the cutoff period. I will explain why the Claimants' attempts must fail.

Before I do that, let me briefly review the legal framework for the Tribunal's consideration of the issue. So the applicable test for the time limitation is found in Article 1116 and 1117 of NAFTA. With respect to the applicable test, there is broad agreement between the Parties here.

First, the Parties agree that breaches that pre-date NAFTA are outside the Tribunal's jurisdiction. The Regulatory Regime predates NAFTA;

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and, therefore, any claim in that respect is also outside the Tribunal's jurisdiction.

Second, there is also broad agreement between the Parties regarding the legal test, as articulated in Article 1116 and 17.

Third, the cutoff period for the three-year time limitation in this case is also uncontested. A breach that occurred prior to April 18, 2016, cannot form the basis of the Tribunal's jurisdiction.

And, finally, there is also agreement that, to serve as the basis of the Tribunal's jurisdiction, the Alberta Court Decision must constitute an independently actionable breach.

The Parties' disagreement lies in whether the Court Decisions in this case constitute a distinct measure that can breach NAFTA. Now, having laid out the legal framework in what is in contention, I will now explain that the Claimants' efforts at bringing the Claim within the Tribunal's temporal jurisdiction must fail. I will focus on three reasons:

The first one is that, notwithstanding any efforts at repackaging the Claim, the essence of the

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Claim is really about the Regulatory Regime, which predates NAFTA and the three-year time limitation.

Secondly, a legal challenge before domestic courts cannot toll the Limitation Period, and I will explain that in a minute.

And, third, I will explain why the Alberta Court Decisions are not an independent actionable breach and cannot form the basis of the Tribunal's jurisdiction.

On the first point, as Mr. Luz said, the gravamen of the Claimants' Claim before this Tribunal is really about the Regulatory Regime and disclosure of the Boards of GSI's Seismic Data and contravention of what GSI asserted as being a copyright.

Now, it is apparent from a review of the pleadings in this Arbitration, including the Witness Statements of Mr. Einarsson, that the Claimants are rehashing arguments that they previously made before the Boards and before Canadian Courts.

And Mr. Luz took you through some of these earlier litigations, except that now they have repackaged the Claims. And instead of arguing that

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the Regulatory Regime was a confiscation of GSI's copyrights, they now argue that it was the Court Decision that was the confiscatory action.

I won't take you through all of the litigation again. Mr. Luz has referred to it, and we summarize it in our Counter-Memorial at Paragraph 119. You will see many of the same allegations that are before you have been made in the past.

The next slide provides a summary of some of this evidence which shows that the dispute does not really originate with the Alberta Court Decisions but, rather, predates it. And there is a lot of information on this slide.

I won't take you in detail through all of this because Mr. Luz has already, to a large extent, covered it. But just to highlight a few points: Importantly, when the Claimants made their investment in 1993, they were aware of the Regulatory Regime and the limited confidentiality period of five years.

And you will see when you read -- reread the Alberta Court of Queen's Bench Decision, the Judge

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recognizes that. And for the decades after that, after 1993 after they made the investment, they complained about the Regulatory Regime.

In their written submissions, they have suggested that they could not have knowledge of the Boards' disclosure practices because they were not static, but the reasons they were not static was because GSI kept lobbying the Government and the Boards to extend the confidentiality period. And ultimately the Boards did agree, as Mr. Luz explained, and to administratively extend the period. But what is in the legislation remains, and so when GSI invested, they knew that the legislation provided for a five-year confidentiality period and that the Seismic Data could be released thereafter.

On the knowledge of copying and the Boards' practices, Mr. Luz has also referred to that and provided you with some references to the evidence on the record. The fact that GSI could not know exactly what material had been copied or by whom may be relevant to time limitation for bringing copyright claims, copyright infringement claims before the

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domestic court or contract breach claims before the domestic courts, but it is not really relevant to this NAFTA Arbitration.

As you heard, they have asserted since 1998 that they had copyright and argued that the disclosure and copying of the data was inconsistent with that copyright. The Boards, as has been shown to you, have repeatedly disagreed with GSI's legal position. So all of this really demonstrates that by 1999, the legal positions of GSI and the Boards regarding the effect of the Regulatory Regime on GSI's copyright had been laid out.

And in sum, this shows that the dispute really had crystallized before the cutoff date. There was a clear disagreement communicated between GSI and the Boards regarding disclosure and the Regulatory Regime. The Boards were aware of GSI's legal position on copyright, and GSI was aware that, whether or not there was copyright, the Board took the position that it could release the data and allow copying after the confidentiality period, of course.

This is the disagreement that eventually

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resulted in the Alberta court actions in 2007. And the fact that there was -- those court actions materialized is evidence that the dispute had crystallized back then. Nevertheless, GSI waited until 2019 to bring its NAFTA Claim.

They have argued that their knowledge of the breach should not start from the crystallization of the dispute but it should start from when the Canadian Courts disagreed with their position. So this brings me to the second point relating to the effect of the domestic challenge related to the Regulatory Regime on the time limitation.

PRESIDENT WALLGREN-LINDHOLM: Excuse me, Mr. Landau has a question.

ARBITRATOR LANDAU: Sorry. Excuse me for interrupting. Just before you move on to the next point, so Canada is putting forward an essence of the claim approach. Is that based on any particular authority that you rely upon for that? That's --

MS. TABET: yes.

ARBITRATOR LANDAU: Because of course the issue that we have to grapple with is on the one hand,

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Authorities, such as they are, such as Eli Lilly and Glamis, which would suggest you just allow a Claimant to formulate its claim and then you take the consequences of that, or a different approach, which is you don't do that. You look through it, and look at the essence.

MS. TABET: Thank you, Arbitrator Landau, I will get to this point in my third point specifically to address the Authority in the Spence and Carrisoza Case which go to the fact that you cannot just rely on the measure identified by the Claimants.

I will just briefly first address the fact that a domestic court action cannot toll the Limitation Period.

On this point, I want to emphasize that under the NAFTA scheme, NAFTA does not require exhaustion of local remedies to bring a claim that the Government expropriated an investment. Investors don't have to bring the Claims before the domestic courts. And in NAFTA, contrary to some other investment treaties, there is no fork-in-the-road provision. And by that, I mean that it is possible

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under NAFTA for an investor to pursue domestic claims and then bring a NAFTA Claim. Some other treaties prevent that.

NAFTA allows it, but if an investor does decide to bring a claim before domestic courts, it is -- it remains bound by the three-year time Limitation Period, so it still has to ensure that whatever NAFTA Claim it brings meets the three-year time limitation.

The common position -- next slide, please. Thank you.

I want to emphasize that this is common position between the three NAFTA Parties. And that agreement between the Parties is very clear. I've included in the slides some references to the U.S. and Mexico 1128 Submission, but specifically the three-year time Limitation Period cannot be interrupted or prolonged by subsequent acts, and specifically domestic court challenges of regulatory or administrative measures cannot toll the three-year time Limitation Period.

And that position has been repeated and

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consistent throughout the last two decades. As such, it is incumbent on the Tribunal to accord the consistent interpretation of the three NAFTA Parties great weight and, as recognized under Article 31(3) of the Vienna Convention. We, in the recent case, Westmoreland versus Canada, the Tribunal recognized that such agreement between the Parties should be accorded great weight.

Now, Canada does not rely only on the NAFTA Parties' interpretation, but NAFTA Tribunals have also accepted this, and we have provided some references to Authorities, including the Apotex and Mondev Case, so RLA-4, and CLA-54.

If you can please go to the next slide.

The Apotex is clear that a subsequent litigation does not toll the Limitation Period.

Now, to get around this fact, the Claimants have tried to portray the case as being about the Alberta Court Decisions, and that contrary to the Apotex decision, or even Mondev, here there is no distinct and separate breach to consider. That's the third point that I want to make here.

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Again, the Parties have agreed that for the Court to have jurisdiction, the Alberta Court Decisions have to be considered independently actionable.

Now, to answer the question that Mr. Landau put, the Claimant has identified the Challenged Measure as the Alberta Court Decision, but the reason -- it is not sufficient for the Tribunal to simply rely on that identification of the Measure. It is true that in the first instance the Tribunal can refer to that measure, but it needs to satisfy itself that that is, in fact, the reality of the case or the essence of the case.

And Canada has provided two Authorities: The Spence case in RLA-10, but also I would like to draw your attention to the Carrisoza case and the approach that was adopted by the Tribunal in Carrisoza specifically considering whether there was an independent violation perpetrated through the legal proceedings related to the 2014 Order, such as denial of justice through the Order itself.

So Canada's submission is that, in the

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present case, the Court Decision did not alter the real cause of the dispute, which was the Board's disclosure of GSI's Seismic Data under the Regulatory Regime.

And if we move to the next slide, what was instructive in the Carrisoza Decision is the fact that the damages case as between the domestic court action, the earlier measure and the 2014 order was the same. And similarly here, there was overlap in the damages claim between the domestic court actions and the Damages Claimed in this Arbitration. So that is further evidence that the real cause of the dispute is the disclosure of Seismic Data.

Now, the Claimants have said that the Court decisions are in and of themselves a breach, separately and independently from the Regulatory Regime. But for this to be true, the Tribunal would have to accept that the Regulatory Regime and the Boards' disclosures are not violation of NAFTA, but that the Court Decision itself can be, and the Claimants have not made that case. They have not alleged a denial of justice or some other akin problem

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with the Court's process, the judicial process. What they are challenging is the usual authority of domestic courts to interpret and apply domestic law.

Ms. Lemmens explained this morning the origins of the Common Issues Trial and the two questions that were being considered by the Trial Judge. I won't go through this again in detail, but this really highlights the nature of the exercise in which the Courts were engaged. Those two questions were: What is the effect of Regulatory Regime on GSI's claims? And can copyright subsist in Seismic material of the kind that are subject matter of GSI's claims?

Again, this highlights the interpretive, the nature of the exercise in which the Courts were engaging.

So with respect to the first question, the Judge's answer was that: "The CPRA, properly interpreted, allows for disclosure without restriction after a defined period of time."

"It is a complete and specific code that applies to all oil-and-gas property, including Seismic

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Data." And the Judge concluded that, as a matter of statutory interpretation, the Regulatory Regime prevailed over the Copyright Act to the extent of conflict.

The second question the Trial Judge considered was with respect to the copyright, and the Judge found that copyright could subsist in Seismic Data of the kinds that were the subject matter of GSI's claim, and that finding was not appealed, as has been mentioned by Claimants' Counsel. However, the finding on the interpretation of the Regulatory Regime in relation to the Copyright Act was appealed and considered again on a standard of correctness by the Court of Appeal.

The Court of Appeal agreed with the Trial Court's interpretive approach and with the findings on this point.

Now, you will hear from three Experts this week, from Mr. Sookman, Prof. Hutchison, and Prof. Bankes, about what the Alberta Court Decisions were doing. All three Experts agree that the Trial Judge was engaged in an exercise of statutory

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interpretation.

To support their argument that the Court decisions were independent from the Regulatory Regime, the Claimants have put forward two arguments: They suggested that the Court decision was novel, unexpected, and that the Courts created a compulsory license scheme. Neither has merit. The Courts were, indeed, asked to consider questions that had not been previously decided, but that does not change the nature of the Decision as one of interpretation of the legislation.

Question before this Tribunal is not whether Judge Eidsvik reached the correct conclusion. That was the role of the Court of Appeal, and the Court of Appeal found no error.

With respect to the arguments that the Courts created a compulsory license scheme, I want to come back to the language from the Alberta Court of Queen's Bench when I get to the Merits. But that was not what Judge Eidsvik did. I think some citations were put to you. They were taken out of context, and frankly they were a bit misleading. I invite the

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Tribunal to carefully reread the whole decision as a whole, and I'll come back to this in a minute.

But what was clear is that the Judge was interpreting existing law and the rights of the Parties under the law, not creating a new compulsory license scheme.

Now, the Claimants have also tried to portray the Court's decision as crystallizing the expropriation by finding that the Regulatory Regime prevailed over the Copyright Act. This reference to a crystallization of the breach by the Courts seems to contradict the Claimants' argument that the Alberta Court Decision are an independent breach, and that the Court caused the expropriation. So I wanted to highlight that.

And, in fact, in the Reply Submission by the Claimants to the 1128 Submissions by the U.S. and Mexico, the Claimants even go so far as to say that they were attempting to prevent the breach by seizing the Courts and that is what crystallized the expropriation.

If anything, that is a -- that statement by

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the Claimants is an admission that they could have brought the NAFTA Claim earlier but instead chose to go the route of domestic courts and that was the Claimants' choice.

Now, one last point on time bar that I wanted to address was the Claimants' attempt to muddy the waters by arguing that they could not know the result of the Alberta Court Decision and the resulting damages.

Previous Tribunals have found that there is no need to know the exact extent or quantification of damages for the time limitation to run. It is sufficient for the Claimant to know it has suffered loss. And on that point, I refer the Tribunal to the Decisions of the Tribunals in the Mondev and Grand River Case that Canada has cited in its written submissions.

And here the Claimants could have known that the disclosure of the Seismic Data would cause them damage from the start. In effect, the Claimants' argument that they could not know the exact extent of damages until the Court's Decision is no different

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than arguing that the limitation period should be extended until the challenges in domestic courts are resolved. And, as I said earlier, NAFTA does not permit that.

So, in conclusion, Canada submits that the entire claim is time-barred, and, as a result, the whole case must be rejected on jurisdictional grounds.

Now, we have a few minutes left, I think, before the break, and I wonder if this might be a good place to pause before I move to the arguments on expropriation and on the Merits.

PRESIDENT WALLGREN-LINDHOLM: Very good. We will meet back then at 3:40. Thank you.

(Brief recess.)

PRESIDENT WALLGREN-LINDHOLM: Welcome back. We will continue Respondent's Opening Statement.

Please proceed.

MS. TABET: Thank you, Madam President.

So before the break, I concluded my submissions on time bar. I will now move on to Canada's submissions on expropriation. And before I

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proceed to explaining the legal test, I want to come back to one point which I mentioned in discussing time bar, and it's a point that really highlights that the expropriation before -- the expropriation claim before this Tribunal is completely fabricated.

You will recall that I highlighted -- and as did Mr. Luz, that many of the Claims before the Canadian Courts were Claims where GSI alleged that the Regulatory Regime expropriated their investment and their Copyright. That point was relevant to time bar because it showed that the essence of the Claim was the Regulatory Regime, but it is also relevant to the Merits because it cannot be both.

The Regulatory Regime cannot have expropriated their Claim, their investment, and the investment is also later expropriated by the Court Decisions. That is nonsensical.

So you have some of the references to these earlier Claims related to expropriations summarized in the slide before you. And in Canada's submission, this should be sufficient to dismiss the Claim as groundless.

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Now, if the Tribunal decides to consider the expropriation Claim based on the Alberta Court Decision themselves -- so if the Tribunal thinks -- concludes it has jurisdiction in the limited -- in that limited way, then the first question that the Tribunal must ask itself is: When can a decision of a court amount to an expropriation, if at all?

And this is a point of contention between the Parties. Canada has explained in its written submissions that international law does not recognize a judicial expropriation except in very limited circumstances. First, there has to be an independent action by the Courts beyond simply interpreting domestic law and the rights and obligations of the Parties under the domestic law.

And, secondly, there has to be a denial of justice. The Claimants have not alleged denial of justice or anything close to it in its treatment before the Canadian courts. Therefore, if the Tribunal agrees with Canada's submission on this point, it must dismiss the entire Article 1110 Claim.

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Canada's position rests on well-established recognition in international law that courts are unlike actions by the Government and that they are -- they have a special nature and they cannot amount to an expropriation absent denial of justice.

I refer the Tribunal to the commentary of esteemed Professors Paparinskis, Christopher Greenwood, and Jan Paulsson, among others. Canada has referred to these Authorities and discussed them extensively in its written submissions. You can find those references to Canada's -- in the Canada's Counter-Memorial at Paragraphs 247 and 249.

The Claimants ignore these leading Authorities, which I'm sure the Tribunal is very well familiar with.

The Claimants also ignore well-established findings of investment Tribunals that have considered the issue of whether expropriation could result from judicial decisions. It's not the first time that the issue has been put to NAFTA Tribunals. And the leading case in this respect is the Loewen Case which I believe Mr. Lanctôt-Fortier referred to earlier.

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That case considered allegations of breach of NAFTA Article 1105, so Minimum Standard of Treatment, and Article 1110 resulting from the Loewen Group's treatment by the Mississippi Courts. And in that case, what was at issue was a requirement that was imposed by the Courts to file -- to post a bond to appeal the Decision. And that led to the bankruptcy of the Loewen Group.

Now, in that case it was really the treatment of the Courts that was at issue, and the overwhelming majority -- so the Loewen Tribunal concluded that there was -- there had to be a denial of justice and that, if it could not establish denial of justice, there could be no Article 1110 expropriation Claim.

Now, the overwhelming majority of investment awards also have followed the reasoning of the Loewen Tribunal and found that a claim alleging an expropriation in violation of Article 1110, when a Court Decision is at issue, that can only succeed if there's denial of justice.

I refer the Tribunal to Canada's

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Counter-Memorial at Paragraphs 251-256. We discuss all of these Authorities, as well as in the Rejoinder at Paragraph 105-109, and the only case of these cases that actually found expropriation was in Lion v. Mexico, and there the Tribunal also concluded that there was denial of justice by the Mexican Courts.

In addition to the leading academic authority and these investment awards that I've just referred you to, I want to emphasize that this is also common position between the NAFTA Parties, that, absent denial of justice, when the Courts are acting lawfully as neutral and independent arbitrators of legal rights, there cannot be an expropriation. That is the Agreement of the three NAFTA Parties and, again, the Tribunal should accord that considerable weight.

This morning the Claimants have referred to the Eli Lilly Award to support their position, and let me briefly address this. Mr. Luz and myself were Counsel for Canada in that case, and what was being challenged was the Court invalidation of a patent

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based on the promise utility doctrine, which was a judge-made doctrine. So it's very much unlike what is at issue here where there's an underlying Regulatory Measure that was being -- and legislative scheme that was being interpreted by the Courts.

In Eli Lilly, the Tribunal found that it did not need to decide, that there can be -- whether there can be expropriation by a court in the absence of denial of justice because it found on the facts that the Claimants' allegations regarding the dramatic change of law were unfounded, and that there was -- they also concluded that there was no arbitrariness in the Court's actions.

But importantly, in Eli Lilly, the Tribunal acknowledged that the Court Decisions should be accorded considerable deference except in exceptional circumstances where there was a clear evidence of egregious or shocking conduct. And in Eli Lilly, the Tribunal rejected the Claim that there was an expropriation by the Courts.

So the single case that the Claimants refer to where there was a finding of judicial expropriation

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absent a finding of denial of justice, is the Sistim versus Kyrgyz Republic Case. The Sistim Award contains virtually no discussion of international law, and that case which was about an expropriation of a Claimant's hotel, which had been affected by the Court is very laconic when it comes to discussion of the applicable Standard.

I should also say that, in that case if you read the judgment and the subsequent Set-Aside Application, the Decision by the Ontario Court in the Set-Aside Application, it is very evident that the Award was based on the fact that the Kyrgyz Courts were -- they were domestically procedurally deficient court proceedings and nothing of the sort is being alleged in this case.

Now I want to move to the next point which is about the nature of the Alberta Court Decision.

I discussed this a bit earlier to show that it could not be a direct cause of action, but in their expropriation Claims, the Claimants have argued there was expropriation because the Copyrights were confiscated and that that whole premise, that whole

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argument is premised on a mischaracterization of the Decision as having created new law and a compulsory License scheme where none existed in the Regulatory Regime. Those are incorrect factual allegations.

So I want to briefly address them before going to the expropriation test.

To recall in the Trial Court's Decision, the judge, after having concluded that copyright could subsist in Seismic Data considered the effect of the Regulatory Regime on copyright on Seismic Data. And, as I mentioned, that was an exercise of statutory interpretation.

Let me just quickly take you through the -- the next slide, please -- the decision where the Court -- that is really where the Court goes through that statutory interpretation, and in doing so the Court applies -- the judge applies well-established principles of statutory interpretation, namely the modern principle.

Those are -- that is the same principle that you will hear from Mr. Sookman, Prof. Bankes, and Prof. Hutchison. That is the applicable principle in

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Canada. That's what the Court did. It went on to identify the applicable statutory interpretation principle and to apply it.

Look at Paragraphs 133-137 of the Decision.

The judge identifies Sullivan -- Ruth Sullivan and Rizzo Shoes, the two leading Authorities in Canada that are also cited by all three Experts before you.

And in the following paragraph, she goes on to apply this principle and address the different arguments raised by the Parties. Now the Claimants' Experts, you will hear from them criticizing how the Court approached this interpretation.

Prof. Bankes accepts that priority rules should have been applied but does not agree with the interpretation reached by the courts. Whereas Prof. Hutchinson criticizes the application of priority rules by the courts, and by that I'm referring to the lex specialis principle, but he does not take issue with the -- Judge Eidsvik's finding that the Regulatory Regime is a complete answer to GSI's copyright infringement Claim.

You have evidence on this before you, but

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really none of this is relevant to the task of this Tribunal. There is really no need to delve into an academic debate about the proper application of the modern principle of statutory interpretation in Canada. As I have said in the past, this NAFTA Tribunal is not a Court of Appeal. The Claimants recognize that. Nevertheless, that seems to be what they are asking you to do.

Even if the Courts were not correct in their interpretation of Canadian law, it would not be a change of law because the Claimants themselves admit that the issues had not -- never previously been decided. Mr. Sookman in his Reports explains this, and in his First Report, you'll see that he concludes -- he goes through and provides a framework to understand the Court Decisions and the analysis that was performed by the judge and says that the Trial Court did not reverse or modify any previous jurisprudence or established novel principles of law.

And he -- in his Second Report, he also says that: "The Judgment never" -- sorry, never -- if we can go back one more slide. Thank you. "Never

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confers any rights on the Boards nor takes away any rights from GSI. Rather, it explained that, to the extent either of these occurred, they are consequences of the Regulatory Regime, as it has always existed."

Now you have seen an extract from -- on the slides that were presented by Claimants' Counsel this morning, a reference to Judge Eidsvik's comment that the Regulatory Regime created, in effect, compulsory license. There was also a slide provided that referred to some Statements that had been made by Senator Hays regarding the confiscatory nature of the Regulatory Regime.

Again, I encourage the Tribunal to read all of the Judgment and not only the citations that were put in the extracts that were put in front of you. And there is a lengthy analysis by Judge Eidsvik on the Regulatory Regime. She does not conclude that there was a confiscation and/or that the Regulatory Regime created a compulsory license.

The comment that is made by Judge Eidsvik is, after having reached her conclusion that the Regulatory Regime is a complete code and a complete

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answer to copyright infringement, she considers other arguments that were put to her and specifically the Authorities that had been put to her on the implied licensing arguments resulting from participation in the Regulatory Regime.

And in that context, it's under the heading "Compulsory License," but that is what she's considering. And it is not -- you know, we can sit here and reinterpret what Judge Eidsvik's findings were, but that is not an operative finding in the Decision. You have to read the entire Decision. That was not the answer. If you look at the Order at the end, that was not what she ordered, and, therefore, this finding could not have been appealed as Claimants' Counsel suggested this morning.

So, now that I've addressed these incorrect assumptions that underpin the expropriation Claim, I will now move on to the test that must be applied to for a finding of expropriation, and there is a great deal of agreement between the Parties basically under NAFTA, which reflects customary international law, an indirect expropriation can only occur if the actions

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of the Parties have the effect equivalent to a direct expropriation but without the transfer of title or seizure of the investment.

Both Parties agreed that, for the Courts to have expropriated GSI showing loss of value of their investment is not sufficient. And Canada cited to Generation Ukraine Award at RLA-84, where the Tribunal stated: "The fact that an investment has become worthless, obviously, does not mean that there was an act of expropriation." And the same is true here and I think has to be fully considered given the facts of this case. I'll come back to that in a minute.

Now the Challenged Measure -- if the Tribunal accepts to consider the Alberta Court Decisions the Challenged Measure and the identified property rights have to be considered in their analysis of expropriation. Again, that means that the Claimants -- the Tribunal must consider whether the Court Decision substantially deprived the Claimants of their investment in GSI, so the GSI as a business.

In other words, whether the Courts destroyed all or virtually all of the economic value of GSI or

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interfered with it to such a similar extent to support a conclusion that the property had been taken from the owner. This is a high bar, and the evidence before this Tribunal does not support such a finding. At most, the Alberta Court Decisions prevented GSI from obtaining damages as a result of copyright infringement Claims.

That potential loss is not tantamount to an expropriation of their business. Importantly, the fact that the value of GSI immediately before the expropriation was nil, according to their own Expert, Mr. Sharp, suggests that it was not the Court Decision that caused the substantial deprivation of the business.

In Canada's written submissions, we have referred the Tribunal to Annex 14(b) of the Canada-U.S. MCA -- or the U.S.-Canada MCA, as the Americans like to refer to it. And we have referred the Tribunal to this because it encapsulates the international law test in Article 1110 of NAFTA.

And in fact, it reflects previously consistent interpretations of the NAFTA Party on the

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meaning of Article 1110. So it relates a summary of previously-agreed position of the Parties on the test under Article 1110.

The Claimants had disagreed that this is the appropriate test, and I don't want to spend too much time on this because the case law is clear on expropriation. I want to make -- focus only on two points that establish that the Court Decisions cannot have caused the expropriation of GSI's business.

The first is that the Court Decisions did not cause a substantial deprivation and the second is that there was no reasonable expectation at the time of the investment that copyright infringement claims for Seismic Data disclosure would be allowed.

We've made a third point in our written submissions. I won't elaborate on it today, and I simply refer the Tribunal to the Counter-Memorial on this point.

With respect to the first point, the first element of the indirect expropriation test, with respect to economic impact of the Measure, there can be no substantial deprivation because the Court's

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Decision only relate to the ability of GSI to bring copyright infringement claim with respect to Seismic Data that is disclosed after the confidentiality period. So notwithstanding the Claimants' efforts to equate this to a substantial deprivation of the business, it cannot be the case. And let me explain that.

The Claimants actually this morning have not spent any time substantiating their allegation of substantial deprivation because of the Court Decisions. And if you look at the value of GSI as a business, their business was the acquisition of Seismic Data and the processing of that data, as we've heard them say. They did not derive their -- they were seeking to obtain Seismic Data and process it so that they can license it to oil companies. We heard that this morning. And they wanted to derive revenue from this licensing. You've heard about vessels and equipment needed to run their business. But GSI sold those vessels and equipment in 2008, and really stopped investing to acquire any new Seismic Data as of that time. Nothing in the Court Decision affected

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this. This was before the Court Decisions. There was no taking of GSI's Seismic library. GSI retained the Seismic Data which was at the heart of its business, and GSI could have continued operating, acquiring new data and licensing Seismic Data. None of that was affected by the Court Decisions.

You will hear later this week from Doug Uffen and Rob Hobbs, which -- they are two Industry Experts that were presented by Canada, and they discuss in their Expert Reports how does one determine the value of Seismic Data.

And they explain that the value of Seismic Data depreciates over time and that most of the value is within the first five years of acquisition during the period of confidentiality. You'll recall that the period of confidentiality goes up to 10 or 15 years. And during that period, that's when companies like GSI make the majority of their sales and licensing -- license the data.

Now, a valuation done by GSI by Mr. Boyd, also on the record, shows that -- exactly the same thing as what Mr. Uffen and Mr. Hobbs have said, that

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there is depreciation of the Seismic Data, very quickly, and the value is at its highest within the first few years after the data acquisition. You have the references on the slide, I won't bring you to the documents because Mr. Boyd's is a confidential document, I believe.

Because the Boards only disclosed some of the submitted Seismic Data after the confidentiality period of 10-15 years, this means that GSI's ability to relicense its Seismic Data during the confidentiality period was unaffected by the Alberta Court Decisions. It's true that there may be still some value that remains in Seismic Data after the end of the confidentiality period, and that would depend on various factors including whether there are more recent surveys in the area, but, really, that does not change the fact that most of the value of the data is within the first few years.

In addition, Mr. Uffen explains, in his Report, that's RER-3, at Paragraph 40, that whatever could be obtained from the Board is not of the same quality and is not the same thing as what oil

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companies would license from GSI. That's also an important point that has not been addressed by the Claimant.

Now, I will not try to explain these technical differences but, from a practical perspective, what this means is that material accessed from the Boards was useful, provided some information, but it was of inferior quality, and that oil companies may still have been interested and were interested in licensing GSI data, at least in the early years before GSI burned its bridges with its customers.

Importantly, none of the Field Data that Ms. Lemmens referred to was ever disclosed by the Boards. And, again, this is what -- GSI could continue licensing this to oil companies. The fact that GSI itself, at the beginning of its operation, bought data from old GSI in 1994, that data had already been disclosed. It was in the public domain. The Boards were publishing that data, and it illustrates this point. GSI bought the Field Data and then reprocessed that data, and then it licensed that reprocessed data.

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So the Alberta Court Decisions only affected access and copying after the confidentiality period, when the value of the Seismic Data was a small portion of the overall value.

On the issue of Secondary Submission, I just briefly want to address this because you've heard Ms. Lemmens speak to this this morning. To be clear, the Alberta Court Decisions did not address the issue. And you've heard Ms. Lemmens refer to the fact that oil companies in some instances were filing data, reprocessed data that they obtained from GSI with the Boards. That may be the case, but that cannot be attributable to Canada. And if it was a violation of their License Agreement with GSI, it would be up to GSI to pursue this with their contractual breaches against them.

Now, the Claimants have argued that, after the Alberta Court Decisions, GSI was no longer able to license its Seismic Data, but the evidence shows that it was not because of the Alberta Decisions. It is because GSI stopped investing in acquiring new Seismic Data as of 2008, about 10 years before the Alberta

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Decisions.

And, also, as Mr. Luz alluded to, companies that had been sued by GSI no longer wanted to do business with them. Mr. Luz will come back to these points later in the damages section and explain that GSI's business was not a going concern by 2008, a long time before the Alberta Court Decisions.

Now, the second point I want to address with respect to expropriation is the legitimate expectations, the investment-backed expectations of GSI. At the time of the investment, there was no reasonable expectation that GSI had copyright in Seismic Data and that it could prevent disclosure in copying of the Seismic Data before the confidentiality period in the Regulatory Regime.

Again, GSI made their investment at a time when the question of copyright in Seismic Data had not been decided. I think this much seems to be agreed by the Parties. As we saw in their own arguments presented by their lawyers to the Board in 1998, they were saying that copyright may subsist in Seismic Data and they may be able to prove that GSI -- that the

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Boards infringed GSI's copyright. It was much less definitive. And, in fact, in the leave to appeal to the Supreme Court, GSI admits that no courts had previously recognized copyright in Seismic Data. And then, at Paragraph 30 of that leave to appeal, GSI says: "From the Decisions below, it is now the law in Canada that copyright can subsist in Seismic Data."

It's only, therefore, as of the Alberta Court Decision, that it is the law in Canada that copyright can subsist in Seismic Data. That is what GSI itself is admitting. At the very least, it was a legally uncertain proposition, and they, nevertheless, decided to make their investment.

When it comes to the effect of the Alberta Decision, GSI cannot have it both ways. On the one hand, it seems to treat the Decision with respect to the copyright as being an affirmation of something that has always been the law and that GSI always had a right to copyright of its data, and, therefore -- it can, therefore, object to copying before that Decision. But, when it comes to the Decision on the effect of the Regulatory Regime, GSI now takes the

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position that that Decision does not affirm what has always been the law, but institutes a new regime, it's novel and creates new law. That cannot be.

Again, it's important for the Tribunal to look at what was the situation at the time of the Claimants' investment. Were there any rights that had been clearly established, and Canada says it was not the case. All that was clear is that GSI would have to get authorization from the Government, would have to submit Seismic Data to the regulators, and that the Seismic Data could be disclosed no earlier than five years after completion of the data acquisition project.

GSI had no right to anything more. The license to acquire Seismic Data was condition on compliance with this Regulatory Regime. That was what a reasonable investor would have considered in deciding to invest, whether it could recoup its money and be profitable within those five years of the confidentiality period.

The fact that GSI hoped to extend the confidentiality period or hoped to prevent disclosure

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through litigation was not a reasonable investment-backed expectation, to use the word of CUSMA. There was no established right, and, therefore, it cannot be the basis of an expropriation claim.

Now, before I conclude on expropriation, I want to address the -- take two minutes to address the relevance of Chapter Seventeen, because the Claimants have spent a lot of time on consistency with Chapter Seventeen in their Opening Statement. Simply put, Chapter Seventeen is not within the jurisdiction of the Tribunal. The Tribunal only has jurisdiction over breaches of NAFTA Chapter Eleven. It cannot -- only NAFTA Parties can litigate breaches of Chapter Seventeen. And the Claimants have referred to a statement in the Azinian Tribunal's Decision, but, frankly, that is not -- that statement does not support -- cannot serve as a basis to expand the Tribunal's jurisdiction and does not support the proposition that breaches of other Treaty provisions are within this Tribunal's jurisdiction.

Incidentally, because there was a reference

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to consistency with Chapter Seventeen, something that the U.S. could have litigated had it wished to do so. But the Courts did not consider, in the U.S. -- the issue of the Regulatory Regime actually ended up before the U.S. Courts and -- as a result of claims by GSI. And in the Decision in the TGS-NOPEC Case, the U.S. Courts did not find that copyright was infringed at all. In fact, if you look at that Decision, the Courts found that copying after the confidentiality period was a condition on participation in the Regulatory Regime and that, as such, it amounted to an implied license. So it did not reach the conclusion that there was some kind of confiscation of the copyright.

Now, let me take you to the text of Article 1110(7), which was alluded to earlier this morning. And as you can see, this provision does indeed refer to Chapter Seventeen, but it is drafted in a way that makes clear that Article 1110(7) is a shield not a sword. In other words, Canada can invoke consistency with Chapter Seventeen to defend an expropriation claim, but it does not have to do so.

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And the submissions from the U.S. and Mexico in their 1128 Submissions confirm Canada's interpretation on the relationship between the two. Simply put, Chapter Seventeen is irrelevant if the Claimants fail to establish expropriation. That's where the Tribunal's analysis must start.

Even if the Tribunal were to consider Chapter Seventeen on consistency, that would not be determinative to the question of expropriation, so, in Canada's submission, the Tribunal need not go there. In fact, because the Regulatory Regime itself is not being challenged, Canada has not presented arguments regarding the consistency of the Regulatory Regime with Chapter Seventeen. And as I have just explained, the Court's Decision did not amount to an expropriation of GSI, therefore, there's no need to consider Chapter Seventeen.

A very brief final point. It was not addressed this morning, but, for the record, Canada reiterates that the claim regarding expropriation of trademark is inadmissible and without merit.

Now, this concludes my presentation on

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expropriation, and I will now turn to the allegation that the Alberta Court Decisions constitute a prohibited performance requirement contrary to Article 1106 of NAFTA, unless the Tribunal has any questions at this time on expropriation.

PRESIDENT WALLGREN-LINDHOLM: No, the Tribunal has no questions at this point.

MS. TABET: We look forward to the Tribunal's questions.

So on Article 1106, let me turn to the text of the provision and Vienna Convention interpretation of this provision. It really highlights the contrived nature of the allegation that the Court Decisions were a prohibited performance requirement.

Let me start with the meaning of the phrase "to enforce a requirement," and, relying on a dictionary definition, it's clear that these terms have to be understood as an action to compel performance or compliance with a demand. Here, the Courts did not enforce anything. They interpreted domestic law as a result of actions that were initiated by GSI itself. I won't repeat my earlier

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submissions on the nature of the Alberta Decisions, but suffice to say that the Common Issues Trial was the result of actions brought by GSI to the Courts against the Boards and oil companies, not an enforcement by the Boards against GSI because they did not submit their Seismic Data.

Canada was not the Plaintiff in the Alberta Decisions and it was not seeking enforcement of the disclosure of Seismic Data.

Secondly, given that the Claimants are not challenging the Regulatory Regime itself, they cannot challenge the Court's application of the Regulatory Regime. To the extent there was any requirement, that requirement is found in the Regulatory Regime, which the Claimants cannot and do not challenge as a violation of NAFTA. So if the Regulatory Regime is not a prohibited performance requirement, then the alleged enforcement of the requirement cannot be a breach.

Third, looking specifically at Paragraph (f), which refers to transfer of proprietary knowledge, it's also clear that the Court Decisions

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did not result in a transfer of Confidential Information. The Courts did not order that GSI's confidential Seismic Data be transferred to anyone. Once the confidentiality period was over, the information was no longer confidential. It was -- therefore, it was no longer proprietary. And the Act provided that. Again, the Claimants are not challenging the Act. So disclosing information that is no longer confidential is not the same thing as a transfer of proprietary information.

In the alternative, Canada submits that, not only does 1106(1)(f) not support the conclusion, but that the applicable provision is not 1106(1)(f), it's 1106(3). So let me take you to the next slides which shows that there are two provisions in Article 1106. One deals with enforcement of requirements and the other with conditions for any condition with respect to an advantage.

And if we go to the next slide, we've provided a summary that shows that not all of the same elements are found in 1106(1) and 1106(3) and, particularly, the transfer of technology or

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proprietary knowledge is prohibited if it's a requirement, but it's not prohibited if it's a condition on receipt of an advantage. And Canada's submission is that the Regulatory Regime was -- if anything, had to be considered under 1106(3) because GSI had no right to access Canada's offshore to conduct its seismic operation.

So obtaining access to Canada's Crown land was a benefit that GSI was seeking in order to acquire Seismic Data for its business.

In applying for the authorization to conduct its seismic operation, GSI had to agree to the terms of conditions as set out in the Regulatory Regime. They were authorized to conduct these operations in return for submissions of the data and for a confidentiality period during which none of the submitted material would be disclosed.

This is the quid pro quo that Mr. Luz referred to. There was a substantial benefit to GSI and, in return, GSI agreed to comply with the Regulatory Regime. Well, it is true that GSI says it never agreed to it, but it had to agree to it.

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The Claimants have argued in their written submissions that this was not a benefit or advantage, and that benefit or advantage has to be understood as limited to the term "subsidy," but that is not the term that was used by the NAFTA Parties. If they wanted to use the term "subsidy," they would have done so.

So, in sum, the Alberta Decisions cannot constitute a breach of Article 1106, and the Tribunal must reject the Claims on the Merits.

This concludes my presentation on the Merits, so I will now turn to Mr. Luz, who will address damages.

MR. LUZ: Before we proceed, can -- Geraldine, can you just confirm how much time we have left?

SECRETARY FISCHER: You have 35 minutes left.

MR. LUZ: Perfect. Thank you.

Madam Chair, before I return to the podium to talk about damages, I'm going to turn the microphone over to my colleague Ms. Elena Lapina, who

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is going to just briefly address the Article 1116 individual claims. Go ahead.

MS. LAPINA: Does it work? Yes, thank you.

PRESIDENT WALLGREN-LINDHOLM: It works. And we can see you.

MS. LAPINA: Thank you. Good afternoon, Madam President, Members of the Tribunal. I will briefly address today the standing of the Claimants to bring what they refer to as their alternative Damages Claim. I will explain why the Damages Claim brought by the three Einarssons on their own behalf under Article 1116 in their capacity as Shareholders, employees, and lenders of GSI, constitutes reflective loss and is impermissible under NAFTA. I will also say a few words at the very end of my presentation regarding Mr. Paul Einarsson's standing to bring his individual 1116 claim in his capacity as a dual U.S. and Canadian citizen.

I will be very brief on that second issue, as it matters only if the Tribunal disagrees with Canada's argument on reflective loss. Otherwise, the issue is moot.

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So NAFTA Chapter Eleven includes two provisions which allow an investor of a party to bring a claim against the other party for two discrete and nonoverlapping types of injury. Article 1116 gives an investor standing to bring a claim when the investor has incurred loss or damage by reason or arising out of a breach of NAFTA by a State. Article 1116 is to be contrasted with Article 1117, which allows an investor to bring a claim on behalf of an enterprise for loss or damage incurred by that enterprise by reason of/or arising out of that breach.

As Canada has explained in its Counter-Memorial, the ordinary meaning of Article 1116 interpreted in the context of Article 1117 is clear. Article 1116 grants an investor standing to recover losses it has directly suffered, not losses suffered by its enterprise.

The NAFTA Parties have consistently interpreted that a claim for indirect injury to a shareholding investor arising from a direct injury to an enterprise or a reflective loss is not recoverable under Article 1116. The NAFTA Parties' agreement in

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this regard was recently reaffirmed by the Non-Disputing Party submissions by Mexico and the United States.

The distinction between Article 1116 and Article 1117 is not a mere formality. As the NAFTA Parties have made it clear, the distinction between those provisions was drafted purposefully in light of existing principles of customary international law bearing claims by Shareholders for indirect losses.

Nothing in the text of the Article 1116 or Chapter Eleven suggests that the Parties intended to derogate from customary international law. NAFTA Tribunals have also recognized this important distinction. Recently, in Bilcon, the Tribunal accepted the consistent practice of the NAFTA Parties in this regard and confirmed that Article 1116 and Article 1117 had to be interpreted to prevent claims for reflective loss from being brought under Article 1116.

Next slide, please.

The distinction between Article 1116 and Article 1117 is reinforced by several other provisions

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in the Chapter Eleven, key among which is Article 1135 which specifies that any award of damages for a claim under Article 1117 is to be paid to the enterprise and not to the investor. The purpose of this provision is to ensure that, when an investor recovers damages on behalf of the enterprise, the interest of others in that enterprise such as creditors or minority shareholders are respected. When determining when an injury is direct or indirect, what matters is not how the Claimant presents its claim but whether the right that has been infringed belongs to the Shareholder or to the corporation, and you can see the quote from Barcelona Traction here.

The examples -- please, next slide.

The examples of direct injury to -- that shareholder/investor could recover under Article 1116 include damages as a result of the loss of voting rights, the loss of the right to receive dividends, the loss of an ability to transfer share ownership, or the loss of a right to acquire further shares.

This list is not exhaustive, yet what those examples have in common is that they relate to damages

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associated with the rights and entitlements of the Shareholder. By contrast, under Article 1117, a claim could be brought for damages resulting from the injury to the enterprise itself including loss in the value of an enterprise's assets, loss in the value of corporation's shares due to the Measures affecting its profitability, or lost profits if they can be proven with sufficient certainty.

To better understand the difference between the two types of Claims, let's take the example of dividends: If a corporation is damaged by wrongful Measures, it prevents it from earning revenue. And, as a result, prevents it from having funds to distribute dividends to its Shareholders. This is a claim that has to be brought on behalf of the corporation under Article 1117, not Article 1116.

If the Measure does not impact the ability of the corporation to issue dividends but, rather, prevents an investor from being able to receive those dividends, this is a claim that can be brought by an investor on its own behalf under Article 1116.

The same principle would apply to the

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repayment of loans and payments of remuneration. If the Measure affects the ability of the enterprise to repay loans or repay the salaries, then a claim properly falls under 1117.

But if the Measure interferes with the right or the ability of the lenders or employees to receive those amounts under the Contracts, then a claim potentially could be brought under 1116 assuming they can meet other jurisdictional requirements.

In their submissions, the Claimants affirm that they are not claiming for reflective losses. Yet if we look at Paragraph 251 of the Memorial, we see that the Damages they are claiming under Article 1116 are a text book example of reflective loss.

First, the Claim loss is suffered due to the total diminution in the value of the shares; second, a loss is suffered as due to being unable to collect on the loans; third, losses due to the respective remuneration and reputations.

The Claimants do mention in Paragraph 251, the loss of the rights conferred by those shares and the right to the dividends. Yet, they do not

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substantiate that claim, nor do they ever explain how the Alberta Court Decisions could have interfered with the right of Einarssons to receive dividends from GSI.

The Claimants are not really seeking Damages resulting from the loss of the entitlement to receive dividends from GSI; rather, they seek compensation for the fact that GSI has no funds to distribute. And that is reflective loss.

The Claimants -- next slide, please.

The Claimants themselves appear to implicitly seek knowledge this in Paragraph 256 of their Memorial when they say that the alleged breach destroyed GSI's business and, in turn, impacted the value of Einarsson's investment in GSI.

To conclude on this issue, the Tribunal should rule that it lacks jurisdiction over the 1116 Claims brought by the three Einarssons and should refuse awarding damages on this basis.

Please, next slide. Thank you.

Regarding the second issue, the dominant and effective nationality of Mr. Paul Einarsson. As I already mentioned, it only matters if the Tribunal

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were to disagree with Canada's argument on reflective loss, otherwise, the issue is moot.

For this reason, I'll be very short. Canada has provided substantial evidence in its written submissions in Paragraph 474 and 487 of the Counter-Memorial and Paragraph 249, 250 of the Rejoinder. This evidence demonstrates that Mr. Paul Einarsson's dominant and effective nationality at the time of alleged loss was Canadian. And Canada explains that, as a result, his Damages Claim is inadmissible under NAFTA under Article 1116.

Moreover, the Parties also to a large extent agree as to the applicable legal principles and many factual elements relevant to the determination of his dominant and effective nationality are uncontested. And for this reason, I'll -- I won't go into more details. I would simply refer the Tribunal to Canada's written submission.

Unless you have any questions, I will leave the floor to my colleague Mr. Luz.

PRESIDENT WALLGREN-LINDHOLM: Thank you.

MR. LUZ: Thank you, Madam Chair, Members of

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the Tribunal. I'll do my best to be succinct. It's been a long day and we don't have that much time, but I do think that there will be some issues that I want to set the stage for.

But we intend to show through cross-examination, as well as through the presentation next week by Darrell Chodorow and Alexis Maniatis of the Brattle Group, why the Claimants' approach to Damages is so utterly flawed.

Simply put, the Claimants' analyses do not measure Damages caused by the alleged breach, the Alberta Court Decisions. To make matters worse, the valuation presented by the Claimants is riddled with errors that the Claimants and their Experts still fail to identify in which Mr. Sharp confirmed cannot be verified based on the lack of documentary evidence provided by GSI.

And, in fact, while the Claimants have tried with a last-minute effort to fix its flawed Damages Assessment on Friday afternoon, Canada will demonstrate that all that was really accomplished by the Claimants was to further destroy the credibility

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of its entire approach to Damages in this case.

Now, Tribunal cannot award the Claimants any Damages for two overarching reasons: The first is that the Damages they claim has no causal link to the Alberta Court Decisions, which is the one and only measure within the Tribunal's jurisdiction and; hence, the only measure upon which Damages may be based.

The second reason why an award of zero Damages, if there was a NAFTA breach, which of course Canada respectfully submits there is not, but if there was, zero damages is to be awarded because the model that the Claimants present is disconnected, both from the liability argument and from reality. The Claimants' Damages case is wildly speculative and unreasonable under any scenario.

So let me address causation first. Before I do, I'm going to remind the Tribunal, again, something that my colleague Ms. Tabet noted: That the Claimants have characterized their Damages as a total loss of GSI, the Company. They have not sought to quantify a loss in value to any particular Seismic Data by assessing how much the data would have been worth if

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copying had been prohibited for the entire term that is allowed under the Copyright Act, as opposed to how much the 10- or 15-year confidentiality period afforded by the Regulatory Regime during which time no copying was allowed.

So there is no valuation of the delta between the value of what they had and what they would have had if the Alberta Court Decisions had gone their way. That's not before this Tribunal.

Nor have the Claimants particularized what they contend what GSI would have been able to obtain through continued copyright infringement litigation.

So the first fundamental problem that the Claimants approach to Damages has is that it rests on a flawed But-For assumption that, if GSI had prevailed in the Common Issues Trial, it would have won immense Damages Awards against all of the Parties copying the Seismic Works. That's how they classify it.

But that's not what the Claimants' Expert is actually quantifying. In fact, Mr. Sharp concedes that attempting to quantify the litigation value of any of such Damages Awards would have been highly

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speculative. And the assertion that GSI would have won hundreds of millions of dollars in Damages is also an untenable leap of logic, given the nature of the Alberta Court Decisions.

Because if the Court had ruled in GSI's favor, on the question of whether the Regulatory Regime allowed for copying or not, that wouldn't have ended the litigations. Instead, the Court would then have had to go on to deal with all of the other defenses that the Boards and the Government of Canada and all the other Parties raised that could have ended with the same result: No violation of the Copyright Act; hence, no damages.

Now, we can see on this next slide that Canada and the Boards raised multiple defenses that were never dealt with by the Court, but they would have had to have been assessed if the Common Issues Trial had gone GSI's way on the second question regarding the effect of the Regulatory Regime.

For example, you can see here -- this is one of Canada's Statements of Defense where there are multiple defenses that exist under the Copyright Act

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for libraries, archives, museums, the Frontier Information Office and so on -- well we will see it in the next slide coming up that the National Energy Board considers the Frontier Information Office where you get this to be a - falling as a library within the meaning of the Copyright Act.

There is limitations defense. But the one that is highlighted in particular is that there was a fair dealing defense under the Copyright Act; and, therefore, there would be no violation of copyright. That's important.

So if we look at the National Energy Board's Statement of Defense, it also raised Limitations Period, the library defense, and fair dealing, amongst others. If we look at the next slide, the Newfoundland Board also raised multiple defenses including fair dealing under the Copyright Act.

Now, why is that important? It is because we know that fair dealing under the Copyright Act, in particular, might have been accepted as a defense to GSI's copyright infringement claims. And we know that from a judgment of the same court by the same judge

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under Calwest.

In that Calwest Decision, you can see this, that Judge Eidsvik said that, if she was wrong on the Regulatory Regime Decision -- which at the time was still an open question because it was being appealed -- but if she was wrong, she said that the defense of fair dealing under Section 29 of the Copyright Act could have succeeded.

The Claimants completely ignore this in their But-For causation. They skipped that step. So in essence, the only damages that GSI actually suffered from the Alberta Court Decisions was a lost opportunity to keep litigating with no guarantee that they would have been able to defeat a defense like fair dealing or the others, and only a potential for monetary damages if the defenses were unsuccessful.

So GSI can't credibly claim a causal link between the alleged breach, the Alberta Court Decisions, and the hundreds of millions of dollars that it claims in this NAFTA Tribunal.

Instead, they have reimagined the world for a decade before the Alberta Court Decisions and

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fabricate sort of a fantasy version of GSI that they say would have been a going concern at the time of the alleged NAFTA breach in 2017. But that's the second flaw. Because, even as the Claimants' own Expert concedes, GSI was not a going concern immediately before the Alberta Court Decisions and, in fact, for many years prior to that.

The real reasons why GSI was not a going concern at the time was because of its inability to invest after the 2008 Global Financial Crisis, the divestiture of its ship assets in 2011, and the alienation of its customers by mass litigation starting in 2007. None of those facts are disputed, but the Claimants are bypassing the inconvenient truth where they imagine GSI to have been immensely more successful than it had ever been previously. And that is just simply not an appropriate way to measure Damages.

And in particular, what is impermissible and unreasonable in the Claimants' Damages Claim is that a huge portion of its Claim has no causal link whatsoever to the Alberta Court Decisions because they

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involve Damages that arise out of entirely separate contractual Damage Claims.

In fact, the Claimants go out of their way to argue that the Claims that they have continued on are not related to the Alberta Court Decisions. So let's go to NAFTA Article 1117(1)(b) because this is where the Causation Rule is enshrined. So the Damages have to be -- that the enterprise has incurred loss or damage "by reason of or arising out of that breach," i.e., in this case the Alberta Court Decisions.

So in other words, the loss or Damage claimed by GSI must be caused by the Alberta Court Decision Judgment, specifically. But by their own admission, so many of the claims - that the Damages that are baked into the Damages analysis are arising from allegedly unpaid invoices for exploration group fees and transfer fees that have nothing to do with the Alberta Court Decisions.

I'll just remind the Tribunal, if we look on the next stage, the Alberta Court Decisions, the Common Issues Trial, explicitly excluded contractual claims. That is something that is uncontested. And

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we know that because the Claimants have continued make claims on those contractual breaches.

So while the Alberta Court Decision, the alleged NAFTA breach, has nothing to do with their license disputes, GSI nevertheless affirmed - and you can see this from their Notice of Intent to Arbitrate and one of the letters that came right prior to the Notice of Arbitration, that it was -- that the Claimants were going to claim those licensing fees against the Government of Canada, even though they had nothing to do with the Alberta Court Decisions. And that's what the Claimants have done.

So the Claimants' position on this is contradictory and misleading. Again, they argue that -- and strongly they argue that they continued private contractual claims against private parties that do not relate to the Alberta Court Decisions. We agree. Their license claims for exploration group fees and transfer fees have no causal link to the Alberta Court Decisions, which is, again, obvious because they continue to litigate them and still do so to this day.

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And the Alberta Court Decisions had no impact on their ability to continue those. And that's why such contractual damages cannot be used in the Claimants' Damages model. And, yet, there they are baked into PwC's so-called revenue normalization model -- revenue that GSI never had, that it can continue to pursue, and are independent and distinct and separate entirely from the alleged NAFTA breach.

And this is where the waiver issue comes in because the Claimants can't have it both ways: Either the contractual damages for License Fees have no causal link to the Alberta Court Decisions and their entire model fails for lack of causality, or the Claimants do consider their loss of contractual transfer and exploration group fees do arise out of the Alberta Court Decisions, in which case the continuation of those Claims after the Notice of Arbitration is a violation of the waiver provision in NAFTA Article 1121 and deprives the Tribunal of jurisdiction. They can't have it both ways. It is one or the other.

But in either case, the outcome is zero

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damages.

Now, thus far -- let me just look at my time to see how much longer -- I focused on the flawed logic embedded in the Claimants' causal approach to damages. But there are also objective facts that the Claimants cannot ignore that GSI -- its demise was caused by extrinsic factors that -- and its own litigation strategy, which took place many years before the Alberta Court Decisions.

And again, we just have to look again at the Standard NAFTA Article 1110. This is the standard for damages that limits the Tribunal's jurisdiction. It has to be the Fair Market Value of the expropriated investment immediately before it took place.

And again, it bears repeating that the Regulatory Regime and the actions of the Boards can't form part of this, but the insurmountable problem for the Claimants is that immediately before the alleged expropriation took place, the Alberta Court Decision, is that GSI was not a going concern and had not been for many, many years. And Mr. Sharp has already admitted this. You can see in the next slide.

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And again, we know that the 2008 Global Financial Crisis was a serious impact, but, again, the Claimants have also conceded that their litigation strategy destroyed one by one the customer relationships that GSI had.

If you go to the next slide, there is just one, but we know that the Claimants have conceded this.

And I'm just going to go -- one last thing about the 2008 Financial Crisis. If we go to the next slide. We know what happened at that time impacted the entire Seismic Data library, and the Claimant -- and the Tribunal will hear from -- and has heard in written testimony from Mr. Robert Hobbs who was the CEO of one of the world's largest Seismic companies, TGS, at the time. That even the largest and most diversified Seismic companies in 2008 were very seriously hit in the revenue.

And, unfortunately, GSI was unable to weather the storm, and that was really the cause of why GSI by -- you know, 10 years later it was no longer a going concern, as well as its litigation

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strategy.

But the point is, the Tribunal cannot go backwards in time to value GSI as a company that existed years before the alleged NAFTA breach, and use damages that arose out of the Regulatory Regime and the actions of the Boards to value damages.

Can I just ask how much time I have left? I don't want to go over time and I'm cognizant that it's getting late in the day.

SECRETARY FISCHER: You have eight minutes left.

MR. LUZ: I have eight minutes.

I think I'm going to skip a small part to be able to get past that eight minutes, but I think I'll be able to finish within there.

I'm just going to make a very -- I'm going to skip something and, actually, it will save us from having to go into confidential mode anyway. But one thing that I do want to say is that the Claimants -- the one asset that the Claimants still had in 2017 was their Seismic Data library, but the Claimants didn't even attempt to provide the Tribunal

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with a valuation of that one asset as that -- in the event of a NAFTA breach, what would be the value of their company and their Seismic Data library.

The Claimants even had an uncontroversial template on how to do that, and that was provided by Doug Uffen, geophysicist, a licensed geophysicist with 40 years of experience in interpreting, inspecting, and valuating Seismic Data. And we know that the Claimants had done valuations of its own Seismic Data library in the past. We're not going to get into that now.

But the point is that, if you look at what the Claimants' own valuations were for its Seismic Data library, there is this massive disconnect between what its own contemporaneous documents said its Seismic Data library was worth 10 years ago and what the Claimants are claiming as damages now. It is just a massive disconnect between what the Claimants own documents show and what they're claiming now. And that just, again, reinforces the lack of credibility that the Claimants' damages approach has.

Just on a final point that would have

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affected the value of GSI's Seismic Data library that has nothing to do with the Alberta Court Decisions.

It comes up in the following slide. It's just some summaries that I won't go through because it's covered in --

Chris, you can change -- no, skip that one.

Yeah. Thank you.

Something that would have to be taken into account in any kind of a valuation of their Seismic Data library is the market that existed between 2008 and 2017, the decade that led up to the alleged expropriation. We know that by that time more than 50 percent of GSI's Seismic Data library was 40 or 50 years old, so there would be very little value to much of it for reasons that had nothing to do with the Alberta Court Decision, just simply the age of the data. Of course, we have no idea what the quality -- the state of that data is in currently.

But there were other factors, market factors, and -- with respect to all of GSI's data in the Beaufort Sea and in the Arctic, and we've got examples here on this slide that there was just simply

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no more market for it because there was a ban on exploration in the Arctic. And one of the key pipelines that would have come out of the Arctic to transport the oil stopped and there was no more projects. There was nowhere to get the oil out so the oil companies were no longer interested; hence, no longer needed to license Seismic Data.

Again, that's a market factor, extrinsic. Nova Scotia, Labrador, those markets haven't been active areas of explorations for many years. That would impact the value of a Seismic Data library.

Newfoundland still fairly active in exploration, but, as we see from the next slide, there was a competitor issue. After 2011 there was a huge influx of competition that came in to shoot Seismic Data that probably rendered a lot of GSI's data obsolete or overshot. But that's not something the Claimants have ever put before the Tribunal. It is not something that they chose to do and; hence, the outcome, again, is zero damages.

Madam Chair, Members of the Tribunal, I'm just going to conclude right on this final point. The

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Claimants criticized Canada for not putting forward an alternative damages valuation, but it's not the burden of Canada to prove their damages. The Claimants have the burden of proof to establish their claim with reasonable certainty, not speculation.

And what the Claimants have done is exactly speculation. They have not fulfilled their duty of the burden of proof, and in situations like that, the Tribunal can, just as other Tribunals have done, Biwater Gauff, Infinito Gold and Eco Oro, the Tribunal can and should award zero damages.

That concludes Canada's Opening Statement and appreciate the long day of listening to both the Claimants and Canada's arguments.

(Comments off microphone.)

PRESIDENT WALLGREN-LINDHOLM: Thank you very much. May I just check how we are doing on the Court Reporter's time. How much time have we spent now?

(Comments off microphone.)

PRESIDENT WALLGREN-LINDHOLM: We have 15 minutes before we need to break.

Okay. Let's do this. First, Mr. Landau has

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a question to both Parties. Let's take that first, and then we will have to see if we need to break before Mr. Einarsson's direct examination. But we will see how long this takes first.

Mr. Landau, please.

ARBITRATOR LANDAU: Thank you very much.

QUESTIONS FROM THE TRIBUNAL

ARBITRATOR LANDAU: So this a question to both Parties just to consider, something which I would personally like some assistance on, and it's not something which you obviously need to answer straightaway, but to come back to when it's convenient.

There is obviously a difference in approach between each side in this case in terms of the characterization of the claim, so the Claimants are clear that they are only impugning the Alberta Court Decisions and not the Regulatory Regime, and the Respondent makes the point, as we have been through before, about essence of the Claim and what it really is.

If one assumes for the moment, just for the

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sake of argument, that the Tribunal is just concerned with the Court decisions and not concerned with the hinterland, if I can put it that way, to those decisions, what led up to them, what I'm unclear at the moment about is when we're told that there is no challenge to the Regulatory Regime, what does that mean actually?

What does the Tribunal assume by virtue of there not being any challenge to the Regulatory Regime? So we know that there was a long history of complaints made by various of the Claimants over time about the Regulatory Regime. And complaints about the adverse impact that it had, its nature, et cetera. If there is no challenge to the Regulatory Regime, does that mean we assume that the Regulatory Regime did have those adverse impacts and that's not problematic? Those adverse impacts are accepted? Do we assume that somehow, they did not have those adverse impacts?

What is the factual basis that we proceed upon in order to assess the Court decisions, if that's clear? Because just saying, well, we are no longer challenging the Regulatory Regime does not give us

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any -- doesn't give me any clear indication as to what that actually means in concrete terms.

I hope the question is clear. It sounded less clear as I articulated it. So that can be answered whenever you feel ready to.

MS. LEMMENS: I think I can give a pretty quick answer now. We are only dealing with the Alberta Decisions as an illegal expropriation. Yes. There were complaints over the years because GSI attempted to deal with disclosure, and then it dealt with what it thought was copyright infringement, but GSI has accepted the outcome of the Alberta Decisions. It is Canada who wants to reargue the Alberta decisions by bringing up -- I heard today twice "rules of the game." That was their argument in the Common Issues Trial. I'm having a Déjà vu moment over again. But GSI says, okay, then that was my luck in life. I brought the disagreement to Court; I got a decision that says that one act overrides the other. But what wasn't appropriate about that Decision is that no compensation came with it. That's the issue that we are here for now.

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ARBITRATOR LANDAU: But the Regulatory Regime, there were complaints beforehand about the Regulatory Regime without there being any reference to compensation at that point. There is no question there. There may have been implicit in the objections beforehand that if you're going to contravene my copyright, then I need to be compensated. But then we get to a point now where all of that is -- there is no -- we're told, well, there is no issue being taken about that.

MS. LEMMENS: I think that there is a mischaracterization that is happening by Canada. So they say, look, GSI's business was destroyed well ahead of the Alberta Decisions. It started suing its customers. This is a prime example of the issue.

When you are a company looking to enforce your copyright against a party, that party is not going to pay the invoice for the copy of the material that they took. So you've got a book. Okay, I'm going to take it away from Seismic Data. You have a book and you sue somebody for copying and infringing your book. They don't pay you for the copy of the

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book. They say, no, I didn't infringe your copyright for whatever defense reasons they have.

That whole time that you're litigating against them, they don't pay you. But if you win at the end of the court case, presumably if they have the money to pay you -- that's another issue about enforcement -- they pay you. You were owed that money the whole time, all the way back to when you first started suing them, and it happened.

Damages puts you in the place that you should -- or you would have been in but for the problem that you're suing on. And so when they say, oh, well, they were suing all of their customers for copyright infringement, if you think about it, had GSI been successful in its copyright infringement Claims, it would have been put back in the same spot. But what Justice Eidsvik said in her Decision is GSI has no ability to do anything about the copying that those third parties did. It is actually allowed by the Government, and there is no compensation for that confiscation.

So that's the position that we've been left

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in. It has gone up the levels of court that we can get to in Canada, and that's a final decision now.

That's an illegal expropriation when there's no compensation that came with it.

I don't know if that clarified or maybe you'll have more questions for me tomorrow.

PRESIDENT WALLGREN-LINDHOLM: Thank you, Ms. Lemmens.

What about --

(Comments off microphone.)

PRESIDENT WALLGREN-LINDHOLM: That's what I was going to, yes. I didn't forget this time. No.

I wanted to ask Canada if you want to address it now or if you would like to think about it and address it later?

MS. TABET: I'll make a few brief comments now, if the Tribunal permits, and then we may come to it more at length later, but I have already touched upon it in my presentations this morning -- or earlier this afternoon.

In Canada's view, if you accept that the regulatory -- the effect of the Regulatory Regime

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is -- that the Regulatory Regime is not being challenged, then all of the effects of the Regulatory Regime are fair game and that you cannot consider those as part of the expropriation, right? You have to only look at the effect of the Court Decisions.

And I think maybe if we can pull up R-001, which is the Alberta Court Decision, then the question -- one of the questions for the Tribunal is that the Tribunal would have to find that the Court Decision was so obviously not interpreting the Regulatory Regime but that it was, in fact, itself conducting a taking or taking the property. That's not what the Court was doing.

And let me just refer to Paragraph 176 of the Decision. Judge Eidsvik goes into the legislative history of the Regulatory Regime.

Can we have Paragraph 176?

And she refers to the whole clause-by-clause and legislative history, and she refers to what Senator Hays at the time was commenting on in discussing the Regulatory Regime. And at that time Senator Hays was talking about retroactive

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confiscation, if you will, of the valuable asset. So he was already making these same comments that you're hearing today that the Court decision confiscated the Seismic Data while Senator Hays was making those comments about the Regulatory Regime.

And then if I can take you to Paragraph 322, again, this was a paragraph that the Claimants cited to this morning suggesting that the Court agree that the regime was a confiscation. Well, in fact, the Court was, again, referring to what Senator Hays had said. Like that first part of the paragraph has been omitted in the Slide before you, but it was a reference to what Senator Hays had said, 30 years ago at the time of Decision, that the Regulatory Regime has confiscated Seismic Data.

So if you agree that the Regulatory Regime cannot be taken into account in your assessment, you have to also consider that the Court was really only interpreting the effect of the Regulatory Regime. And we'll come back to this issue more specifically, but I wanted to leave you with that.

PRESIDENT WALLGREN-LINDHOLM: Thank you.

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Now, I know that Mr. Gowdy has one or two questions, and because we need to take a break, I propose that you make your questions now and when we come back after a short break, we will see if you want to address it then or with after some further thought.

Will that be fine?

MS. LEMMENS: I'm only noting the time. It is 5:12, at least on my computer. So I would just like, during the break, to understand what we are doing. Because if we come back in 15 minutes, it is 5:30. And if Mr. Einarsson is supposed to take the stand and I'm not able to speak with him tonight, I'd like to know that before a break, and I'd also like to be able to tell him when he can anticipate to be able to go eat dinner tonight.

So I'm just trying get a lay of the land for what you're thinking for the rest of the day.

PRESIDENT WALLGREN-LINDHOLM: At present I'm not thinking anything. I don't know what Mr. Gowdy is going to ask, but why don't you put the questions now and then we will see before we break. Okay?

MS. LEMMENS: Thank you.

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PRESIDENT WALLGREN-LINDHOLM: Thank you.

ARBITRATOR GOWDY: Actually, I'm going to make it really easy, I do not expect an answer tonight. I was just hoping to get an answer sometime over the next couple of weeks to two questions, but I do not -- emphasize "not" -- need an answer tonight.

Just something to think about.

Number one, prior to the Alberta Court Decision when, if at all, were Claimants on notice that the Regulatory Regime and the copyright law were not reconcilable? So that would be question number one. Prior to that decision, when, if at all, were Claimants on notice that those two provisions could not be reconciled?

The second question -- and this is in reference to a Respondent exhibit, denial of justice. And then there's a disjunctive word "or" used, fundamental defect and judicial proceedings. I think I understand what a defect and a judicial proceeding is, but I am looking for examples of a denial of justice, with no expectation that it be answered any time in the foreseeable future.

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PRESIDENT WALLGREN-LINDHOLM: Thank you,

Mr. Gowdy.

Before we proceed to even an effort to

respond, I propose that we discuss the further

schedule of today.

So it is now 5:15, and the obvious question

is whether Mr. Einarsson takes the stand tonight or

only tomorrow.

MS. LEMMENS: On behalf of Claimants, I

would say tomorrow.

MR. LUZ: I'm glad we agree. I think it has

been a very long day, and it would -- yes, I think

tomorrow would be appropriate.

MS. LEMMENS: I realize there's a time zone

difference for some of the others in the room.

PRESIDENT WALLGREN-LINDHOLM: I will not

comment, but thank you.

So Mr. Einarsson, this means that you will

take the stand only tomorrow.

And what about the questions that Mr. Gowdy

now made? You want to sleep on them?

MS. LEMMENS: Yes. Well, one of them is a

[Page 262]

question about legal precedence being the second

question, so I think that we would need to just review

in order to be able to provide a proper response to

that one.

For question number one, I think that is a

question that should actually be left because we are

going to hear from Mr. Einarsson tomorrow.

PRESIDENT WALLGREN-LINDHOLM: Okay. Thank

you.

Canada?

MR. LUZ: Yeah, I think we will address it

later on.

PRESIDENT WALLGREN-LINDHOLM: Okay. So

then, is there anything further from anyone? No.

Okay.

Then we shall meet again tomorrow at

9:30 a.m. Thank you for today. Thank you.

(Whereupon, at 5:15 p.m., the Hearing was

adjourned until 9:30 a.m. the following day.)

[Page 263]

POST-HEARING REVISIONS

CERTIFICATE OF REPORTER

I, Dawn K. Larson, RDR-CRR, Court Reporter,

do hereby attest that the foregoing English-

speaking proceedings, after agreed-upon

revisions submitted by the Parties, were

revised and re-submitted to the Parties per

their instructions.

I further certify that I am neither counsel

for, related to, nor employed by any of the

Parties to this action in this proceeding, nor

financially or otherwise interested in the

outcome of this litigation.

Signature

Dawn K. Larson

[Page 264]

IN THE MATTER OF AN ARBITRATION UNDER CHAPTER ELEVEN

OF THE NORTH AMERICAN FREE TRADE AGREEMENT

AND

THE ARBITRATION RULES OF THE UNITED NATIONS COMMISSION

ON INTERNATIONAL TRADE LAW, AS ADOPTED IN 1976

- - - - - - - - - - - - - - - x

In the Matter of Arbitration :

Between: :

:

THEODORE DAVID EINARSSON, :

HAROLD PAUL EINARSSON, :

RUSSELL JOHN EINARSSON, AND :

GEOPHYSICAL SERVICE INCORPORATED, : ICSID Case No.

: UNCT/20/6

Claimants, :

:

and :

:

THE GOVERNMENT OF CANADA, :

:

Respondent. :

- - - - - - - - - - - - - - - x Volume 2

HEARING ON JURISDICTION, MERITS, AND LIABILITY

Tuesday, March 4, 2025

Calgary Marriott Downtown Hotel

110 9th Avenue SE

Calgary, AB, T2G 5A6

Canada

The Hearing in the above-entitled matter

came on at 9:46 a.m. before:

MS. CARITA WALLGREN-LINDHOLM, President

MR. TREY GOWDY, Co-Arbitrator

MR. TOBY LANDAU KC, Co-Arbitrator

[Page 265]

ALSO PRESENT:

On Behal of ICSID:

MS. GERALDINE R. FISCHER

Secretariat to the Tribunal

Realtime Stenographers:

MS. DAWN K. LARSON

Registered Diplomate Reporter (RDR)

Certified Realtime Reporter (CRR)

Certified Realtime Captioner (CRC)

Larson Reporting, Inc.

2564 West 280 North Street

Hurricane, Utah 84737

United States of America

[Page 266]

APPEARANCES:

Attending on behalf of the Claimants:

MS. MATTI LEMMENS

MR. VINCENT LANCTÔT-FORTIER

MS. MARIANNE BASTILLE-PARENT

Stikeman Elliott LLP

Bankers Hall, 4200 3 St SW West 888

Suite 4200

Calgary, AB, T2P 5C5

Canada

Party representatives:

MR. HAROLD PAUL EINARSSON

[Page 267]

APPEARANCES: (Continued)

Attending on behalf of the Respondent:

MR. MARK LUZ

MS. SYLVIE TABET

MS. JULIA DEUTSCH

MS. ELENA LAPINA

MS. CAMILLE BÉRUBÉ-LEPAGE (virtual)

Trade Law Bureau

Global Affairs Canada

Lester B. Pearson Building

125 Sussex Drive

Ottawa, Ontario K1A OG2

Canada

MS. MOLLY RUMPKE

Core Legal Concepts

MS. DAPHNÉE CAMPEAU

Global Affairs Canada

MR. ALEXANDER BLACK (virtual)

Crown-Indigenous Relations and Northern

Affairs Canada & ISC Legal Services,

Indigenous Rights and Relations Portfolio

MR. PETER WIGEN (virtual)

Canadian Heritage Legal Services

MR. MARK KLAVER (virtual)

Office Legal Services Sector

MR. FRANCO BELLO (virtual)

MS. KIM PHILLIPS (virtual)

MS. JESSICA MACINTOSH (virtual)

MS. JEAN-FRANCOIS ROMAN (virtual)

Natural Resources Canada

[Page 268]

APPEARANCES: (Continued)

Party Representatives:

MR. SÉBASTIEN FOURNIER (virtual)

Crown-Indigenous Relations and Northern

Affairs Canada

MR. SCOTT LITTLE (virtual)

MS. SUSANNA KAM (virtual)

MR. VINCENT BOULANGER (virtual)

Global Affairs Canada

MS. TARA SNELL (virtual)

MS. NATALIE GIASSA (virtual)

MS. PIERRE-LUC RACINE (virtual)

Innovation Science and Economic Development

MS. TIFFANY SANDERS (virtual)

MS. LYNETTE GIBBONS (virtual)

Canada Newfoundland & Labrador Offshore

Petroleum Board

Respondent's Party Representatives:

MR. MARKO VESELY

Canada Energy Regulator

MR. ALEX MILLER

Core Legal Concepts

MR. CHRIS REYNOLDS

Core Legal Concepts

Non-Disputing Parties:

MS. KRISTINA E. BEARD (virtual)

Office of International Claims and

Investment Disputes

U.S. Department of State

MR. ALAN BONFIGLIO RÍOS (virtual)

MS. PAMELA HERNÁNDEZ MENDOZA (virtual)

MR. ALDO GONZÁLEZ ARANDA (virtual)

Secretaría de Economía

[Page 269]

C O N T E N T S

PAGE

PRELIMINARY MATTERS...................................270

WITNESSES:

HAROLD PAUL EINARSSON

Direct examination by Ms. Lemmens...........273

Cross-examination by Mr. Luz..............278

Redirect examination by Ms. Lemmens.......391

Questions from the Tribunal................413

BHARAT DIXIT

Direct examination by Mr. Luz.............421

Cross-examination by Ms. Lemmens..........423

Redirect examination by Mr. Luz...........511

Questions from the Tribunal...............515

CONFIDENTIAL SESSIONS.......................341-353, 384

[Page 270]

P R O C E E D I N G S

PRESIDENT WALLGREN-LINDHOLM: Good morning

for the second day of the Hearing.

PRESIDENT WALLGREN-LINDHOLM: Mr. Einarsson,

you may be seated, please. Thank you.

This is the second day of our Hearing, and

we will go directly to the examination of Harold Paul

Einarsson. We decided to leave any household issues

to later on.

HAROLD PAUL EINARSSON, CLAIMANT'S WITNESS, CALLED

PRESIDENT WALLGREN-LINDHOLM: Mr. Einarsson,

you are a Party Representative and you have been

called to testify as a witness in this NAFTA

Arbitration. You have been called by Claimants. You

have given five Witness Statements, and I trust that

you know what these proceedings relate to?

(Interruption.)

THE WITNESS: I do.

PRESIDENT WALLGREN-LINDHOLM: Whether or not

you have given testimony before, I ask that you

address the Tribunal with any questions or concerns

that you may have in relation to procedure or if

[Page 271]

there's anything that you do not understand.

THE WITNESS: Thank you.

PRESIDENT WALLGREN-LINDHOLM: I believe that

you know who everybody is by now.

THE WITNESS: I do.

PRESIDENT WALLGREN-LINDHOLM: So any

introductions would be superfluous. Different from a

State court, we do not administer oath in

international arbitration, but you still have an

obligation to speak the truth. Any failure to speak

the truth may have consequences. Your testimony will

be recorded and transcribed.

May I ask that you confirm for the record

that you will speak the truth?

THE WITNESS: I will speak the truth.

PRESIDENT WALLGREN-LINDHOLM: Claimants will

first conduct a short introduction and direct

examination, whereafter, opposing Counsel will

cross-examine you on matters relevant to this

Arbitration in your knowledge and experience, followed

by a right to redirect by Claimants and possible

recross.

[Page 272]

I know that you have by now access to

documents that may be used for your testimony, both in

hard copy and digitally. At the close of the first

slot of your examination, we will address the question

of sequestration, but we will revert when we take a

break.

Are there any questions before I ask Counsel

for Claimant to introduce you?

THE WITNESS: No.

(Interruption.)

MS. LEMMENS: Madam Chair, I just wanted to

confirm that there are no other witnesses, the lay

witnesses, present via Zoom right now.

MR. LUZ: No.

MS. LEMMENS: Okay. Thank you.

PRESIDENT WALLGREN-LINDHOLM: And what I was

going to ask, if there were any newcomers today? Or

any newcomers or an associate that you wanted to

introduce? No newcomers.

MR. LUZ: Not that I'm aware of, Madam

Chair.

PRESIDENT WALLGREN-LINDHOLM: Thank you.

[Page 273]

And no newcomers on Claimants' side?

MS. LEMMENS: Not that I'm aware of.

PRESIDENT WALLGREN-LINDHOLM: Then maybe

nobody is aware of any newcomers, so we will conclude

that, to the best of our understanding, there are no

newcomers. Thank you.

Then I will ask Ms. Lemmens to introduce the

witness. Thank you.

DIRECT EXAMINATION

BY MS. LEMMENS:

Q. Good morning, sir. Are you able to state

your full name for the record, please?

A. Harold Paul Einarsson.

Q. And, for the record, I'd like to review the

five Witness Statements that Madam Chair just raised

in her discussions with you just now. I'd like to go

over them. Before you, sir, in hard copy, you have a

Witness Statement of Harold Paul Einarsson that is

CWS-01?

A. Yes.

Q. And, sir, can you confirm that you provided

that Witness Statement in respect of a motion to

[Page 274]

disqualify leading to a conflict of interest in this

matter?

A. Yes.

Q. Sir, you also have a Second Witness

Statement, CWS-2, of Harold Paul Einarsson before you.

Do you see that?

A. Yes.

Q. You provided that Witness Statement in April

of 2021. Do you see that, sir?

A. Yes.

Q. Can you confirm that you provided that

Witness Statement?

A. Yes, I did.

(Interruption.)

A. Yes, I did.

Q. Sir, you have a Third Witness Statement,

CWS-6 before you?

A. Yes.

Q. And can you confirm that you did, in fact,

provide that Witness Statement in these proceedings?

A. I did.

Q. And that was dated September 27, 2022; is

[Page 275]

that right?

A. I'm not sure where the date is on this.

Yes. September 27, 2022.

Q. Thank you, sir. And your Fourth Witness

Statement at CWS-7, do you have that before you, sir?

A. I do.

Q. And did you, in fact, provide that Witness

Statement in these proceedings?

A. I did.

Q. That was in respect of a motion to compel

Canada to produce documents in these proceedings?

Do you recall that?

A. Yes, I do.

Q. Finally, your Fifth Witness Statement, sir,

it's CWS-12 in these proceedings.

Do you have that before you?

A. I do.

Q. And you, in fact, provided that Witness

Statement in these proceedings?

A. Yes, I did.

Q. And that was in May of 2024.

Do you recall that?

[Page 276]

A. That's correct.

Q. Thank you, sir. For the Tribunal, could you

please provide a short background of yourself to

introduce yourself to the Panel?

A. Well, I grew up primarily in Dallas, Texas,

Plano, Texas. I worked in the banking industry; I

worked in the seismic industry. I have two children

that were born in Dallas and I live currently in

Las Vegas, and was very involved in the development of

the -- this Company in 1993 and then came on full-time

in 1997. I worked in the previous Delaware GSI

Company as did my father and my brother. And I think

that's it. Unless anybody -- have any more questions,

I think it's all in here.

Q. Thank you, sir. When you said this

"Company" can you just identify the Company?

A. Geophysical Service Incorporated, the

Canadian Company.

Q. Sir, you also mentioned your father and your

brother. Could you just identify them for the record?

A. My father, Theodore David Einarsson, I'm his

executor, and Russell John Einarsson is my younger

[Page 277]

brother.

Q. And in these proceedings, sir, what is your

role?

A. Well, I'm representing the Company and the

Claimants.

Q. Thank you, sir.

MS. LEMMENS: I have no further questions

for direct. I think we've all read his Witness

Statements, so I'm happy to have you proceed with your

cross-examination. Thanks, Mr. Luz.

PRESIDENT WALLGREN-LINDHOLM: Thank you.

Mr. Luz, could I just ask first, yesterday

we had 30 minutes assigned for the first slot, but I

assume that now you could take an hour?

(Interruption.)

MR. LUZ: Yes, Madam Chair. I mean, we can

do an hour or, as Mr. Einarsson feels he needs a

break, or the Tribunal or anyone else needs a break

but --

PRESIDENT WALLGREN-LINDHOLM: Yes. I trust

that he will tell us if he needs. But I think that

it -- there is no -- yesterday, I think it was

[Page 278]

30 minutes because the day was ending, but now you

could -- we could at least, as a working hypothesis

take an hour.

MR. LUZ: Yeah. And I'll take note sort of

where it is as to where I think might be the right

time --

PRESIDENT WALLGREN-LINDHOLM: Very good.

MR. LUZ: -- so if it's a little bit less or

a little bit more than an hour but again, depends on

how you're feeling at the moment.

PRESIDENT WALLGREN-LINDHOLM: Very good.

Thank you.

MR. LUZ: Thank you.

CROSS-EXAMINATION

BY MR. LUZ:

Q. Thank you. Good morning, Mr. Einarsson.

As Madam Chair said, the introductions are

superfluous, but my name is Mark Luz representing the

Government of Canada in this Arbitration.

I'm going to be asking you a series of

questions with respect to your Witness Statements

filed in this Arbitration. Principally the ones that

[Page 279]

are labeled CWS-6, September 27, 2022, and CWS-12,

May 31, 2024, so if you've got those ones handy, I

think are the principal ones that we'll refer to

today.

I know you've testified before and so I'll

just go over some of the simple ground rules just for

this. You know, to the extent that you can answer my

question with a yes or no, that would be very helpful,

but for the record, so that it's clear in the

Transcript -- and -- you know, it is important to

provide a clear response.

Our time here is limited, so I would ask if

you'd try and be as succinct as you can in your

answers. And of course, as Madam Chair suggested,

that there's an opportunity for redirect by your

Counsel if there's things that you want to elaborate

on, but of course, I will give you the opportunity to

answer your questions. I just ask that you try and be

as succinct as you can.

A. Yes.

Q. Thank you.

There will be a couple of times -- and I

[Page 280]

know it's somewhat tedious sometimes -- where we have

a document and we will read certain parts of it into

the record. I know it takes a little while. It might

be -- you know, if it's language from you, you might

be able to read it or I can read it in the record.

It's just important to have it in the Transcript, so

that may come up from time to time so that everyone

knows what exactly we're talking about.

And I'll also -- as I'm going through it,

I'll also refer to the exhibit number, the date of the

document, again, that's important for the record. The

documents are going to be shown on the screen as well.

We also provided a hard copy. You're welcome to look

through it. I'm going to, of course, give you the

opportunity to familiarize yourself with the document

because some of them you want to be able to read for

yourself as to what it is. And so if you need a

second to be able to look through it, then please do.

A. Thank you.

Q. Okay. Great.

So it was in 1997 that you and your family

moved to Calgary to support and grow GSI's Seismic

[Page 281]

1 Data business in Canada; is that right?

2 A. Correct.

3 Q. Okay. And you said in your Witness

4 Statement that you purchased 50 percent of the Shares

5 of GSI from your uncle shortly -- shortly after you

6 joined GSI in 1997?

7 A. That's correct.

8 Q. And you say in your Witness Statements that

9 you and your father, Davey Einarsson, made decisions

10 about GSI together?

11 A. That's correct.

12 Q. And you discussed GSI's affairs with him

13 regularly?

14 A. Yes.

15 Q. And that goes back to 1997, when you first

16 joined GSI?

17 A. Even a little bit before, but certainly

18 after '97.

19 Q. Okay. When you joined GSI in 1997, did you

20 have a particular job title or position other than

21 being the 50-percent Shareholder?

22 [Redacted]

[Page 282]

[Redacted]

[Redacted]

[Redacted]

4 Q. Okay.

5 A. And I don't recall the title.

6 Q. Okay. You mentioned an oil company?

7 A. Yes.

8 Q. What was that?

9 A. I believe it was Ardal Resources.

10 Q. Ardal Resources. And that was affiliated

11 with GSI or a separate company?

12 A. Separate company, and it was affiliated with

13 WesternGeco. It was a joint venture between us.

14 Q. Okay. And Ardal -- does that company still

15 exist or was that amalgamated with GSI at some point?

16 A. I don't recall what I did, what happened

17 with that company. I'm sorry.

18 Q. Okay. It's no problem. Okay.

19 When you joined GSI in '97, did you work

20 with other employees of the Company?

21 A. Yes, I did.

22 Q. Okay. Did you work with Doug Dowdell?

[Page 283]

1 A. I did.

2 Q. Do you remember what his position was at

3 GSI?

4 A. Doug was responsible for kind of the

5 tape/copy transcription group and the warehouse that

6 we had that we assumed from the prior company. We

7 just took over the whole facility, including the

8 employees. And he later became in charge of the

9 equipment leasing for land seismic. We also had three

10 land seismic crews with all the equipment, and we were

11 the sole leasing entity of a manufacturer in Calgary

12 for land seismic systems, it was called ARAM. And we

13 would rent those out, we would also run two or three

14 crews of our own conducting land Seismic Data.

15 Q. Okay. Thank you.

16 Did you work with Sam Nader?

17 A. I did.

18 Q. And do you remember what his position was at

19 GSI?

20 A. Sam was in marketing, licensing of Seismic

21 Data.

22 Q. Okay. Were there any other sort of key

[Page 284]

1 employees besides those two, yourself, your father,

2 that worked -- when you joined GSI in '97 that were --

3 A. There were some warehouse staff and data

4 transcription people that changed over time.

5 Q. Okay. And then you became the COO and

6 Chairman of GSI in 2002, I believe you said in your

7 Witness Statement?

8 A. That's correct.

9 Q. Okay. So when you joined GSI in '97 and

10 started learning about the offshore business in

11 Canada, did you familiarize yourself with the laws and

12 regulations governing the collection of Seismic Data

13 in the offshore?

14 A. Well, we -- yes. I started looking at all

15 of that.

16 Q. Okay. And did you become familiar with the

17 roles of the three offshore Petroleum Boards in

18 Newfoundland, Nova Scotia, and the then-called

19 National Energy Board?

20 A. Yes, I did.

21 Q. Okay. And did you familiarize yourself with

22 the process by which seismic companies would apply for

[Page 285]

1 authorization to carry out seismic surveys in the

2 offshore?

3 A. I didn't pay attention to it very much at

4 the beginning, because we had an office in Windsor,

5 Nova Scotia, and they kind of handled that when we

6 first started acquiring data in 1997.

7 Q. Okay. And as you said, you didn't pay much

8 attention at the beginning, but did you become

9 familiar with the type of Seismic Data materials that

10 geophysical companies like GSI had to submit to the

11 Boards in order to conduct the surveys?

12 A. Yes.

13 Q. Okay. So I just want to ask you some

14 questions about the Boards' practice of releasing

15 copies to the data around the time that you joined GSI

16 in 1997. You can open up your cross-examination

17 binder. We're going to open up to Exhibit R-240 and

18 it's at Tab 1. You can open it up at the -- you can

19 go ahead and take your time. Just let me know when

20 you're ready to look at it.

21 A. I'm ready.

22 Q. So these are from the Newfoundland offshore

[Page 286]

1 Petroleum Board. The document is called "Geophysical,

2 Geological, Environmental, and Geotechnical Program

3 Guidelines." And they're published in January 1996,

4 so the year before you moved to Calgary and joined

5 GSI.

6 Do you recall, when you joined, if you had

7 ever reviewed these guidelines as part of your

8 familiarization process?

9 A. At some point, I reviewed it. I don't

10 remember when.

11 Q. Okay. Someone else from GSI, you think,

12 would likely have reviewed the guidelines at that

13 time?

14 A. Well, we did one survey, I believe, in 1997,

15 so it was just a beginning for us.

16 Q. Okay. I'm just going to take you -- again,

17 I don't want to spend a lot of time on this, but let's

18 just go to the introduction, which is -- it's on

19 Page 7 of the PDF, and it's on Page 1 of the actual

20 document under the "Introduction."

21 A. Okay. I can see it.

22 Q. You already said that you became familiar

[Page 287]

1 with the Newfoundland Offshore Petroleum Board. The

2 first sentence says: "The Newfoundland Offshore

3 Petroleum Board is the authority responsible for the

4 Administration of the Regulations pertaining to all

5 exploration for and production of hydrocarbons in the

6 Newfoundland offshore area, the approximate outline of

7 the areas under the Board's jurisdiction shown in

8 Figure 1. These guidelines have been prepared to help

9 operators who wish to conduct geophysical, geological,

10 and geotechnical or environmental program including

11 fieldwork within this area.

12 "They replace those issued by the Board in

13 March 1992 for geophysical and geological programs.

14 These guidelines are based on the Canada-Newfoundland

15 Atlantic Implementation Act, the Canada-Newfoundland

16 Atlantic Accord Implementation Act, and then it lists

17 a few other regulations. I don't think we have to go

18 through there."

19 Do you see that in the introduction?

20 A. I see it.

21 Q. Okay. So these guidelines were prepared to

22 help operators who wished to conduct the kinds of

[Page 288]

1 surveys that GSI was starting to plan to do in the

2 Newfoundland offshore area; is that right?

3 A. I don't know how to answer that.

4 Q. Do you recall if -- would it have fallen

5 within your scope of responsibilities to review this

6 document, or that fell within your Nova Scotia office

7 or someone else at GSI?

8 A. Yeah, I think that was probably in our Nova

9 Scotia office.

10 Q. Okay.

11 A. I wasn't really dealing with this sort of

12 thing at that time. It caught my attention later.

13 Q. It caught your attention later?

14 A. We went through all of this in the Common

15 Issues Trial.

16 Q. Right.

17 I'm just going to skip ahead to Page 18,

18 which is PDF 24.

19 Do you have a full copy? For some reason,

20 I'm missing a page in here. Is a page missing in

21 your --

22 A. Mine stops at Page 14.

[Page 289]

1 Q. It does. Mine does too. Okay. You know

2 what, it's a missing page, we can skip that part.

3 A. I can look at the screen here.

4 Q. At the screen, do you mind?

5 A. Sure. I can see it.

6 Q. Okay. Yeah. So this is -- again, I

7 apologize. For some reason, it's missing in here, but

8 this is on Page 18 of the document, which is PDF

9 Page 24. Can you open up that screen so we can see

10 it. Yeah. I'm just looking at the last sentence

11 there, where it says: "A full listing of geophysical

12 and geological reports and data released by the Board

13 may be found in the publication 'Released Geophysical

14 and Geological Reports-Newfoundland Offshore Area,'

15 copies of which may be obtained from the Board

16 office."

17 When you joined in 1997, do you recall

18 consulting this document?

19 A. I don't recall specifically, no. I'm sorry.

20 Q. Do you think anyone from GSI's office in

21 Nova Scotia would have been familiar with the Board's

22 publication of released Data Reports?

[Page 290]

1 A. Well, I know we read it because we complied

2 with the submission requirements.

3 Q. Okay. We can put that away and just pull

4 up -- it's in Tab 2 -- R-516. You can go to your

5 binder, if you want. This is a March 1996

6 publication, "Released Geophysical and Geological

7 Reports, Newfoundland Offshore Area, March 1996."

8 Do you recall consulting this document after

9 you joined GSI?

10 A. I read these things at some point. I don't

11 recall exactly when.

12 Q. Okay. Let's just turn to Page 1 of the

13 document, or Page 3 of the PDF and I'll just read

14 under the introduction: "This publication is divided

15 into two parts. Part 1, white pages, contains a list

16 of geophysical and geological programs for which

17 reports and data have been released by the

18 Canada-Newfoundland Offshore Petroleum Board, C-NOPB,

19 pursuant to Subsection 119(5)(d) of the

20 Canada-Newfoundland Atlantic Accord Implementation

21 Act, and the Canada-Newfoundland Atlantic Accord

22 Newfoundland Act, the Acts, these subsections state

[Page 291]

1 that geological or geophysical work performed on or in

2 relation to any portion of the offshore area may be

3 disclosed five years following the date of completion

4 of the work."

5 When you joined GSI in 1997, were you aware

6 that that was the rule, that the Board would disclose

7 Seismic Data reports after five years?

8 A. Well, I know that was the government's

9 position or the board's position, and they always use

10 these very nebulous words like "disclose," "display,"

11 or whatever. We didn't know what it meant. And that

12 was a very moving target for us, as you know. Well,

13 we went through all this again in the Common Issues

14 Trial.

15 Q. Right. Let's turn to Page 3 of the PDF or

16 Page 5 of the document. Take your time and take a

17 look at that. Sorry. It's Page 3 --

18 A. I'm missing a bunch of pages. So I'll look

19 here.

20 Q. I apologize.

21 A. That's fine. I'll look here.

22 Q. I'm just going to -- it's the column on the

[Page 292]

1 right-hand side, where it says: "How is the

2 information in a program stored?"

3 Do you see that?

4 A. Yes.

5 Q. And, again, you can scroll down to the next

6 section, "where may the information be studied?"

7 Do you see that?

8 A. Yes.

9 Q. And then the next subsection says: "How may

10 copies of the data be obtained?"

11 Do you see that?

12 A. I see it.

13 Q. And it said: "Reproduction of released

14 materials may be arranged at the expense of the

15 requestor through the C-NOPB for programs submitted

16 since 1981. Mylar copies of the seismic lines are

17 generally available. Printing of these may be carried

18 out by a local firm which will bill the purchaser

19 directly. For pre-1981 data, duplication of

20 microfilm, again by a local firm, may be arranged.

21 Further details may be obtained from the C-NOPB

22 office."

[Page 293]

1 Do you see that?

2 A. I see it.

3 Q. So this document is indicating that, as of

4 March 1996, copies of Seismic Data that are listed in

5 this publication were available for copying; is that

6 right?

7 A. I don't know. I got different information

8 in my access to information responses that -- I don't

9 know how many hundreds I did. Maybe 400. And our

10 earliest instances where we could see copies being

11 made were at various times, and I believe those are in

12 my Witness Statement. So I don't -- I read what's

13 there, but I don't think that was actually happening.

14 And we were told by the Boards that it wasn't

15 happening, as well.

16 Q. Okay. Do you know if anyone from the Nova

17 Scotia office of GSI went to the Boards to review the

18 released data and find out if copies were available

19 from the Boards?

20 A. I don't recall. I know we did a lot of

21 investigation at some point to try and figure out what

22 was going on, but I don't recall specifically. I'm

[Page 294]

1 sorry.

2 Q. Would that investigation have involved

3 consulting the document that explains how copies can

4 be obtained from the Boards?

5 A. Well, that document didn't do anything for

6 us. What we were trying to understand was what

7 actually was happening.

8 Q. Okay.

9 A. So that's what I was trying to investigate.

10 And we got very conflicting information from time to

11 time.

12 Q. Okay. I'm just going to go -- I'm going to

13 pull up a couple of programs. It's on Page 28 of the

14 actual document or Page 32 of the PDF. Again, we'll

15 pull it up. It's a little hard to see, but if we can

16 focus in -- and, again, you have a hard copy if it's

17 helpful, but we're going to focus in on the second,

18 third, and fourth entries in this, if you can see it.

19 Yeah. So we can highlight right across.

20 Yeah. Great.

21 So the first entry -- are you able to read

22 it? I know it's a little small on the screen.

[Page 295]

1 A. Yes, I can read it.

2 Q. So this says: "GSI," under the Column

3 "Program Number, 8624-G005-011P." It says, "Completed

4 Date, 03-07-86." There's a "Latitude" in another

5 column. There's "Kilometers" in another column. And

6 the column that says "Mylar?" there's a "Y," which I

7 assume means "Yes." And then there's an Operations

8 Report, "Regional Nonexclusive 3D, Jeanne D'Arc Basin

9 Air Guns."

10 Do you recognize that as one of the GSI

11 Seismic Programs that was purchased from Halliburton?

12 A. I do.

13 Q. So in March 1996, this publication indicates

14 that it was available for copying by the public, based

15 on what we just read in the previous section?

16 A. I honestly don't know how to answer that

17 because of all the conflicting information I received

18 from the Boards.

19 Q. Okay. I'm going to look at the entries

20 right below it, where it says: "Husky Oil,

21 8627-H006-04DA." Again, there's a completion date

22 that's also 03-07-86, and it continues on. And then

[Page 296]

1 the contents are described as "interpretation of data

2 purchased from 8624-G005-1P, GSI, 1985/86."

3 Do you -- well, first of all, going to the

4 program number, do you know what "DA" means at the

5 end?

6 A. I don't.

7 Q. Okay. It means data acquisition, which you

8 can see, if you want to take a look at it. It's on

9 Page 3 of the document. It means data acquisition.

10 The contents describe this as interpretation

11 of data purchased from the GSI program immediately

12 above. Did you or anyone else from GSI go to

13 investigate as to whether or not that was one the

14 Secondary Submissions that you've described in your

15 Witness Statements?

16 A. We did, but I think it was around the 2010

17 timeframe when we obtained access to information

18 responses about this whole Secondary Submission scheme

19 involving our data, where our licensees were

20 converting that data for huge sums of money. And we

21 were pretty surprised. In fact, I notice you have one

22 not highlighted. There is actually three of them

[Page 297]

1 there, Husky, Petro-Canada and Parex. They are all

2 the same.

3 Q. I was going to ask you about that, as well.

4 But you acknowledge that these Secondary

5 Submissions are publicly available for copying, as of

6 March 1996?

7 A. Well, if that's what the list says.

8 Q. Okay.

9 A. Maybe there is even a fourth one there. I

10 see the one below it "Husky Oil" saying "wellsite

11 survey."

12 Q. Okay.

13 A. We just weren't aware of this whole process.

14 Q. Okay. We can put that document away.

15 You already described that when you joined

16 GSI in 1997, GSI started to conduct more offshore

17 seismic surveys in the offshore; is that right?

18 A. Yes. I believe we did one in '97, and then

19 we started doing more in '98 and there forward.

20 Q. I'm going to pull up Exhibit R-250. It is

21 dated July 10, 1997. Well -- sorry. That is

22 the -- it was filed in the Common Issues Trial, so

[Page 298]

1 that's the cover page. If you go to the next page,

2 this is the document. It's a letter dated July 10,

3 1997, from the C-NLOPB to your colleague Doug Dowdell;

4 is that right?

5 A. That's correct.

6 Q. And the subject is for the 1997 Speculative

7 3D Seismic Survey Jeanne D'Arc Basin?

8 A. Yes.

9 Q. Do you recall, is this the '97 program that

10 you were just talking about before?

11 A. Yes.

12 Q. Okay. We won't go through the whole

13 document but I'll just draw your attention to the last

14 paragraph, where it says: "We would like to remind

15 you that the Final Report should include digital

16 copies of the shot point location data and seismic

17 traces. Details are described in the Board's

18 'Geophysical, Geological, Environmental, and

19 Geotechnical Program Guidelines,' Section 5." And the

20 last sentence says, "The data from this survey will be

21 made publicly available five years following the

22 completion of fieldwork."

[Page 299]

1 So, again, that reflects the guidelines that

2 we had looked at previously and the document that we

3 had just looked at, as well, that after five years the

4 data would be released to the public?

5 A. The letter speaks for itself.

6 Q. Okay. And did GSI carry out this program?

7 A. Yes, we did.

8 Q. In '97, were you aware that GSI had already

9 been complaining to the Boards that copies of its

10 Seismic Data were being released to third parties?

11 A. I was aware of the history from my father

12 that, you know, we kind of started with no disclosure,

13 disclosure by consent, and then viewing was going on.

14 And as far as we knew at this early stage, there was

15 viewing.

16 Q. Okay.

17 A. We weren't -- and our initial inquiries

18 indicated an odd one or two instances that we chased

19 down in every instance.

20 Q. Okay. I'm going to pull up R-269, which is

21 dated 17 November '97.

22 Take your time to scroll through the letter

[Page 300]

1 and read it.

2 A. Keep moving.

3 Q. Okay. Sorry. Keep going, whoever is

4 controlling it.

5 A. Keep going.

6 Q. Keep going. It's in hard copy, as well,

7 Mr. Einarsson, if that's easier.

8 A. Oh, okay.

9 (Comments off microphone.)

10 A. And what was the date of this letter? And

11 who was it from?

12 Q. Sure. I'll read it into the record. It is

13 dated November 17, 1997. And it is from your

14 colleague Sam Nader, VP Marketing of GSI, and it is to

15 the Newfoundland Offshore Petroleum Board. And it's

16 copied to T.D. Einarsson, President, GSI Houston, as

17 well as Canadian Association of Petroleum Producers.

18 Do you see that?

19 A. Okay.

20 Q. Were you aware? Do you recall this letter

21 being sent to the Newfoundland Board?

22 A. Not this specific one, but it wouldn't

[Page 301]

1 surprise me.

2 Q. Okay.

3 A. We kept reiterating our position.

4 Q. Sure. I'm just going to ask you some

5 questions about some of the details that are in here,

6 and you can tell me some of your impressions of it.

7 So, again, I'll read it into the record.

8 The second paragraph: "GSI takes significant risk and

9 is generally the major investor when acquiring these

10 surveys, although some surveys are partially

11 subscribed to by oil and gas explorers prior to being

12 acquired. GSI relies on oil companies licensing our

13 data to generate enough revenue to recoup our

14 investment and ultimately generate a profit on any

15 given survey. This is our only source of income.

16 Normally, we wish to have at least recovered our

17 initial investment within five years. This is not

18 always the case. Some surveys have required

19 10-15 years before our initial investment has been

20 recovered. Some surveys have always remained in a

21 loss position."

22 So just to ask you, generally, Mr. Nader

[Page 302]

1 says that normally we wish to have at least recovered

2 our initial investment within five years. So that was

3 GSI's general Business Plan was they would seek within

4 five years to be able to make back their investment

5 and hopefully profit?

6 A. Anybody would want to do that. You want to

7 make it back in the year, first year, if you could.

8 Q. Right.

9 A. It would be nice.

10 Q. Okay. Let's go to the next paragraph and

11 just see -- I'll ask you, sort of, your understanding

12 of it, but: "The main criteria employed in deciding

13 whether or not we will shoot a speculative survey are:

14 Crown land, open areas, expected level of

15 participation, initial and ultimate, expected level of

16 payout and timing."

17 So let's go to the first bullet point,

18 "Crown land, open areas."

19 What do you understand that to mean?

20 A. Well, in order to do a seismic survey, it

21 has to be somewhere where an oil company can lease to

22 explore and drill. Otherwise, they are probably not

[Page 303]

1 going to license from you. Although, there are big

2 exceptions to that when you tie certain structures and

3 certain wells, even if they are in off-limit areas,

4 sometimes that data is extremely valuable to show the

5 extent of a basin and so forth.

6 So it's not a true statement that I've seen

7 in this proceeding and elsewhere, where they say, "Oh,

8 this data is in off-limit areas and it's useless and

9 it has to value." That is absolutely wrong.

10 Q. Okay. I'm going to go back to this, and I

11 think you explained it, that it's -- "Crown land"

12 means it is Canadian-owned public land?

13 A. Well, we have done it in other parts of the

14 world. It is just that it's available for leasing by

15 an oil company is all we care about.

16 Q. Right.

17 A. Because they are not going to explore in an

18 area that they can't obtain a lease, so that they can

19 exclusively drill in that area.

20 Q. Understood. The second bullet point is

21 "expected level of participation, initial and

22 ultimate," and that's anticipating what oil companies

[Page 304]

1 are going to want to actually license the data.

2 Is that sort of the summary, or what do you

3 think?

4 A. No. It is actually better than that. We,

5 in many cases, would get underwriting for a survey

6 ahead of time. So we would have a precommitment from

7 an oil company. They would say, we'll license this

8 data if you create it. And we normally -- sometimes

9 try to get two or three, and so it takes your risk

10 away.

11 Q. Right.

12 A. Yes. So that's what "initial participation"

13 means. And then "ultimate" is looking at is there an

14 opportunity to license it to Company C, D, and E

15 later, or is it likely that these companies will

16 obtain a partner. And then you obtain licensing

17 through obligatory equalization, which is in every

18 seismic company's license agreement.

19 Q. Right. And the last one, "expected level of

20 payout and timing," I think we already went through

21 that. You said, generally, the Business Plan is

22 five years, but you hope that you can make the money

[Page 305]

1 back even within one year?

2 A. Well, of course. That would make something

3 more profitable and some were -- they were all over

4 the map. So it depended on the area and a number of

5 factors.

6 Q. Right. But that was GSI's general Business

7 Plan was to make back the profit in five years?

8 A. We tried to, yes.

9 Q. Okay. I'm going to go to the second

10 paragraph on the second page. It says: "By allowing

11 the release of speculative data, the C-NOPB is

12 allowing parasitic companies that have not contributed

13 financially or taken any risk to acquire a copy of

14 released Seismic Data from the C-NOPB at reproduction

15 cost only, scan the Seismic Data with little or no

16 added value, and then proceed to trade with the

17 Seismic Data as if owned. This practice is depriving

18 serious and legitimate investing companies of revenue

19 from their investment."

20 So this indicates that, as of the date of

21 this letter, November 17, 1997, GSI was aware that

22 there were companies that were scanning data available

[Page 306]

1 from the C-NOPB; is that right?

2 A. I don't know, specifically, the C-NLOPB. We

3 would go to trade shows, like everybody in our

4 industry. There were three or four big ones a year.

5 And we'd see these giant booths for Lynx Information

6 Systems, KP data, other companies; and they would be

7 reselling other owners' data that was scanned and

8 vectorized. So "vectorized" meaning taking it from a

9 paper copy to a digital copy, which is much more

10 valuable, which didn't exist when all these

11 regulations and laws were written.

12 And they can put it on a workstation that

13 has extremely powerful tools to interpret and use the

14 data and manipulate it and obtain lots of information

15 out of it, even things like knowing whether it's gas

16 or water and things like that.

17 So that was a huge shift in our entire

18 industry and, as far as I know, all the data owners

19 were very concerned about this happening and seeing

20 these booths at these things. But we didn't know,

21 specifically, what their activities were and what they

22 were doing until, I think, much later when we got

[Page 307]

1 these access to information responses in the

2 mid-2000s. Because, of course, nobody talks. When

3 they're stealing, they don't want to tell you.

4 Q. Right. But GSI was aware that this was

5 happening in 1997?

6 A. We had concerns about it, yes, because we

7 would see these booths at these trade shows.

8 Q. The next paragraph says: "We respectfully

9 request that released data be regulated by the C-NOPB

10 in collaboration with the legitimate owners of the

11 surveys, and not permit any reproduction or trading

12 with such data without written permission from the

13 companies that have invested time, effort, and money

14 to collect these surveys. In summary, GSI requests

15 that the released data be limited to copies of paper

16 sections and regulated for the use of oil companies

17 only."

18 Do you see that?

19 A. I do.

20 Q. Okay. Do you know what the Board's response

21 to that request was?

22 A. I don't.

[Page 308]

1 Q. Let's pull up Exhibit R-270, which is dated

2 November 27, 1997. You can scroll down so that

3 Mr. Einarsson can see it. Again, it's in your binder

4 if you want to look at the hard copy.

5 Again, this is the C-NLOPB's response dated

6 November 27, 1997.

7 It said: "The Board's release of Seismic

8 Data is governed by the confidentiality period set out

9 in the Canada-Newfoundland Atlantic Accord

10 Implementation Act and the Canada-Newfoundland

11 Atlantic Accord Implementation Act.

12 "In your letter, you have requested that the

13 released data be limited to copies of paper sections

14 and that their release be limited to oil companies

15 only. Please, note that the Board's current practice

16 is to limit release of this data to copies of paper

17 sections and the accompanying reports.

18 The Board does not have the power to limit

19 the release of such data to oil companies only. Once

20 the period of confidentiality has expired, the Board

21 has no choice but to allow the data to fall within the

22 entire public domain."

[Page 309]

1 Do you see that?

2 A. I do.

3 Q. Okay. So the Board was saying they are

4 going to continue the practice of releasing paper

5 copies to the public?

6 A. Well, I see that Sam is asking for something

7 that is not our company position. Our position is our

8 data is confidential and it shouldn't be disclosed at

9 all.

10 Q. Okay.

11 A. That other laws applied in Canada, which we

12 later found out did.

13 Q. Okay.

14 A. So the Boards were just winging it here and

15 going off on their own, apparently, in hindsight.

16 Q. Okay.

17 A. Yes. And they just kept parroting

18 back: "We have this Accord Act that gives us some

19 authority," while they're ignoring all the other laws

20 in Canada.

21 Q. I'll move on.

22 After being informed of the Board's

[Page 310]

1 position, GSI conducted another survey the next year;

2 is that right?

3 A. Having nothing to do with accepting any of

4 this and so forth.

5 Q. Okay.

6 A. We are trying to run a business. We have to

7 pay people every two weeks. We have ships sitting

8 there. We have equipment. We have overhead. We have

9 rent to pay. We're a real business trying to struggle

10 under these murky rules that we didn't understand and

11 we couldn't get clarity on, despite trying hundreds of

12 times.

13 Q. Okay. I'll just pull up R-251 --

14 ARBITRATOR LANDAU: Can I just ask a quick

15 question? Sorry to interrupt.

16 MR. LUZ: Please.

17 ARBITRATOR LANDAU: Forgive me. Just

18 following through the chronology, we -- after this

19 letter, as far as the documents that we have

20 available, we don't have anything else until about

21 April 1998 in the chronological run.

22 So if this is left with the Board saying

[Page 311]

1 they would welcome a meeting to further clarify the

2 matter, you may have no recollection or knowledge, but

3 are you able to help us as to what would have happened

4 after that or what did happen immediately?

5 You are being told by the Board about their

6 position, would there have been further engagement

7 with the Board before you proceeded to make further

8 investments?

9 THE WITNESS: The Board never met with us

10 directly. We would meet with representatives from the

11 Board from time to time, but I don't ever recall a

12 meeting where we could actually get with them. I got

13 much closer with the National Energy Board, and now

14 called the CER in Calgary here. And we did have quite

15 a few meetings also with the geologic survey.

16 ARBITRATOR LANDAU: We're just focusing on

17 this time period. We are now in November of 1997.

18 There's a gap in the contemporaneous documents now

19 until April '98. I'm just wondering what happened in

20 the meantime? But you may not know.

21 THE WITNESS: I don't know. There were a

22 lot of gaps. This was not uncommon. Around this time

[Page 312]

1 the government started on a shared data repository

2 thing. And we had huge meetings with maybe 20

3 industry people and then representatives from all the

4 three Boards.

5 It happened around this timeframe, '98, '99

6 to maybe 2003, and we had meetings in Halifax. We had

7 meetings in different cities. And they were actually

8 trying to expand the disclosure of data. And there

9 was a lot of back and forth. There is a lot of

10 correspondence. I think it is in these Witness

11 Statements.

12 So we had a constant dialogue. We kept

13 trying to have a dialogue and to understand how they

14 thought they could do these things. And there was a

15 bit of a "ship passing in the night" because we said,

16 "What about all these laws?" And they would say, "Oh,

17 we've got these regulations."

18 ARBITRATOR LANDAU: Thank you.

19 ARBITRATOR GOWDY: Mr. Einarsson, could I

20 ask a quick question?

21 THE WITNESS: Yes, sir.

22 ARBITRATOR GOWDY: You suggested that this

[Page 313]

1 response was in conflict with other Canadian laws, and

2 I'm wondering what other Canadian laws you think this

3 letter was in conflict with; if I understood your

4 response correctly?

5 THE WITNESS: Well, there's a great document

6 in my Witness Statement. I believe it is

7 Clause 84(s). It's where I talk about what the

8 Canadian government knew and so forth.

9 Anyway, there's a document in there from the

10 C-NLOPB, I believe. And they did a review. And they

11 said that common law -- the Access to Information Act,

12 and specifically Section 20, which says trade secret

13 data or will cause financial harm, you're allowed to

14 block an access to information request, block the

15 response, based on those Section 20 criteria. And

16 then copyright law.

17 And in that memo, it said that the C-NLOPB

18 was then aware that those three things, common law,

19 copyright, and the Access to Information Act,

20 Section 20, would block the disclosure of this data.

21 We never saw that until much later in this production

22 and so forth. But that was back in '98 they knew they

[Page 314]

1 were doing this.

2 And what's happening here is this was all a

3 big finesse to try and finesse this thing and keep

4 repeating these rules and keep rehashing this

5 Regulatory Regime rules of the game that were never

6 fixed, ever. They were constantly changing the rules

7 and constantly pulling the rug out from under us, so

8 it was very difficult for us to understand what was

9 going on.

10 And I tried meeting -- there's evidence

11 where I sat down with the GSC. They actually sent me

12 a letter and said we'll honor your copyright. We're

13 not going to make copies without your permission. But

14 then they reneged on that behind the scenes, we found

15 out in subsequent access to information. So we were

16 led down the garden path here in many, many ways.

17 And then you can see what happened in this

18 court proceeding that we had with the common issues.

19 Our legal experts will dissect that for you, and you

20 can make what you want of that, but it was always,

21 heads, the government wins and, tails, we lose. That

22 was always the answer.

[Page 315]

1 ARBITRATOR GOWDY: Thank you.

2 BY MR. LUZ:

3 Q. Thank you.

4 I'll just pick up from -- if you recall

5 where I had left off. I was going to pull up -- after

6 receiving the November 27, 1997, letter from the

7 Board, do you recall that GSI did another Seismic

8 survey the next year in 1998?

9 A. Well, yes.

10 Q. Okay.

11 A. We continued to do some surveys, yes.

12 Q. I'll pull up Exhibit R-251. It's a letter,

13 approval letter for -- it is dated June 14, 1998, and

14 it is an approval letter for 1998 2D Nonexclusive

15 Seismic Grand Banks.

16 And then we will just look at the last

17 paragraph. It says: "The final reporting

18 requirements for the program are as outlined in the

19 guidelines for geophysical and geological survey,

20 Section 5. This includes digital copies of the shot

21 point and final migrated Seismic Data. Data will be

22 released five years and six months following the

[Page 316]

1 completion of the survey."

2 Do you see that?

3 A. I do.

4 Q. Okay. And GSI decided to go ahead with that

5 survey?

6 A. Not based upon reading that. That had

7 nothing to do with it.

8 Q. Okay. I want to ask you a few questions

9 about -- in your Second Witness Statement, CS-12, you

10 refer to a legal memo by GSI's lawyers, Code Hunter

11 Wittmann from July 1998.

12 Do you recall that?

13 A. I do.

14 Q. Okay. Great.

15 We're going to pull it up. It is Exhibit

16 R-531, and it's under cover of a letter dated July 27,

17 1998, from GSI, Doug Dowdell to the

18 Canada-Newfoundland Offshore Petroleum Board.

19 Do you remember Mr. Dowdell sending this

20 letter with the Code Hunter Wittmann memo attached?

21 A. I don't, but I'm -- I was aware of it, yes,

22 or at least after the fact.

[Page 317]

1 Q. So I'm just going to read into the record

2 the cover page from GSI where it says: "Our position

3 is that all geophysical information which we have been

4 filing on an ongoing basis with the C-NOPB is

5 confidential information, which in addition, enjoys

6 copyright protection. By this letter, we are advising

7 the Board that all information filed by us with the

8 Board is not to be released. We are attaching for

9 your information a copy of a legal analysis prepared

10 by our lawyers, Messrs. Code Hunter Wittmann, which

11 sets out the legal rationale for our position."

12 Do you see that?

13 A. I do.

14 Q. Okay. And that's the legal memo that you

15 were referring to by GSI's lawyers?

16 A. Well, that's one of them. We were trying to

17 have a dialogue and sit down and sort this out, which

18 was always stymied somehow by the government.

19 Q. Okay. I'm not going to -- I know you're not

20 a lawyer, so I'm not going to ask you about the legal

21 analysis in here, but there is just one specific

22 provision in the memo that I want to go through. It

[Page 318]

1 is on Page 6 of the PDF, which is Page 3 -- if you

2 want to look at the hard copy, that's fine. If not,

3 the electronic version is good.

4 It is Page 3 of the memo, Page 6 of the PDF

5 under the heading: "Position of the Boards in respect

6 of the information received."

7 Do you see that?

8 A. Yes.

9 Q. Okay. Again, I'm just going to have to read

10 it into the record just so that it's in there so

11 everyone knows what we are talking about. "For a

12 number of years, the C-NOPB and the C-NSOPB" -- the

13 Nova Scotia Board -- "have taken the position that any

14 information filed with them is governed solely by the

15 provisions of the CN-AAIA and the CN-SAIA." Which I

16 believe are the Accord Acts. "Specifically the Boards

17 refer to Sections 119 and 122 of the CN-AAIA and the

18 CN-SAIA respectively, which provide that geophysical

19 information, once received by the Board, will be

20 treated as privileged information and will not be

21 released by the Board for a period of five years from

22 the date of its receipt of filed information."

[Page 319]

1 And then it refers to certain sections.

2 "The Boards' apparent view is that at the

3 expiry of that five-year period, all filed information

4 is then available for release to the general public.

5 GSI's concern is that the information is confidential

6 and copyrighted information from which it derives its

7 business revenue by virtue of licensing such

8 information to various third parties. The effect of

9 the respective Board's release of all filed

10 information is to release such confidential and

11 copyrighted information free of charge to third

12 parties without GSI being compensated for this

13 information."

14 You would agree that that's a pretty

15 accurate summary of the Board's position versus GSI's

16 position at the time in 1998? Is that right?

17 A. Well, I don't know, quite honestly, because

18 I'm not sure what the Board's real positions were.

19 Q. Okay.

20 A. This is some commentary from one of our

21 attorneys.

22 Q. Okay. Like I said, I wasn't going to ask

[Page 320]

1 you for that. I just wanted your general impression.

2 It's the next paragraph that I wanted to ask

3 you about where it says: "GSI has recently been put

4 in the position in which it was unable to negotiate

5 for the full value of information filed with a Board

6 as the purchaser took the position that such

7 information was available at no cost to them from the

8 Board. In another instance, a known producer had

9 obtained data from the Board and was not prepared to

10 pay normal license fees for the data as a result."

11 Do you recall what -- which two companies

12 this is referring to?

13 A. See, this was before I was fully involved in

14 the company, which wasn't until about '99, 2000. I

15 was mostly dealing with financial kind of things at

16 the beginning and this oil company that we were

17 involved in, so I don't recall the specific company or

18 instance.

19 Q. Okay.

20 A. I'm sorry.

21 Q. That's fine.

22 But this is acknowledging that GSI had

[Page 321]

experienced diminishment in its licensing fees because of the Board's actions; is that right?

A. Well, I don't know. It looks like they are giving two examples, but I don't know how they were resolved or what occurred after this.

Q. Okay. Sure.

I'm going to pull up Exhibit R-236, which is a letter from the C-NLOPB dated February 24, 1999, to Mr. T.D. Einarsson, and this letter indicates that the C-NLOPB has made a policy change regarding the confidentiality period of data from nonexclusive geological or geophysical work and indicates: "The data will now be available for disclosure after the expiration of 10 years following the date of completion of the work."

And it concludes that: "This change is applicable to all data that are currently considered privileged."

Do you recall being made aware in February '99 that the Board had extended the confidentiality period for nonexclusive data to 10 years?

A. Yes. I know there were some changes from

[Page 322]

time to time, yes.

Q. Okay. And that change would have benefited GSI because it gave an extra five years within which to be able to make its money back as we talked about before. Before it was a five-year program, now it's ten years to make your money back.

A. Well, we found that wasn't entirely true, though. We had all these Secondary Submissions that I told you we weren't aware of where our clients would convert our licensed data and sell it to the government, and then those better versions of data often reprocessed, and who knows in what format, because we didn't get any production here. And our production was blocked in our -- I don't know how many -- 50 Access to Information requests. Never once did they give us the submissions, the data that was actually provided.

So that's a blind spot for us, and -- but we know there is data there because we had -- for example, that Jeanne D'Arc survey that we saw earlier, we had companies go and get all three or four or five versions of submissions, not only from us but our

[Page 323]

licensees, on a real consistent basis, and they would go and get all of them, so that was the most pirated survey in our whole thing.

So what would happen is they would submit and it would be released after five years, because it was deemed an exclusive survey under the oil company's name, so this -- I'm not sure how much this benefited us, if at all. And, in fact, a lot of the data we had was from the '80s and '70s, so it really wouldn't have done much anyway.

The problem was not having life of the author plus 50 years. That was our problem.

Q. Okay. Just to go back, you were talking about the survey that was listed in the March 1996 publication that we looked at earlier; is that right?

A. Yes. The Jeanne D'Arc 3D, it licenses for about [Redacted] a copy. And then when you have somebody going and getting five different versions of it, eight companies doing that, it's a huge loss.

Q. Okay. I'm going to pull up a letter dated May 5, 1999. It's Exhibit R-272. It's a letter from GSI to the Newfoundland Board, and the letter

[Page 324]

says: "We request the Board please give us written notification, preferably by fax, if any person or company requests any geophysical data that was collected through the time, resources, and efforts of GSI."

Do you recall that?

A. I don't recall this specific one, but I know we gave many notices like this.

Q. Okay. Do you recall -- let's pull up Exhibit R-273, a letter dated May 13, 1999. It's from the Board in response to the letter we just looked at where it said: "The exploration department will endeavor to notify you of any requests for such data collected through GSI provided that the requesting party does not object to us notifying GSI of their request."

Do you recall that was the Board's response?

A. I don't recall this specific one.

Q. That's fine.

The next letter is R-271. It's the 1st of June 1999. And I'll just read it. It is from GSI, T.D. Davey Einarsson, and it is copied to Code Hunter

[Page 325]

Wittmann, which is GSI's Counsel.

Do you recall?

Just take a look at the letter.

So I'll just read it into the record. "Your letter is absolutely inconsistent with our detailed legal position previously given to the Board. Our position is simply that information filed with the Board is our information. Your letter is also inconsistent with the verbal commitment given to by GSI by former Chairman Jim Strain some time ago. We, therefore, do not accept your suggested procedure."

There's a second paragraph, which I don't think is necessarily relevant. I'll read it anyway.

"Our recommendation dated December 11, 1998, copy enclosed, where GSI agreed to handle delivery of data to requestors, an appropriate solution and is consistent with federal law. Your letter implies that requests for data will be released by your exploration department. GSI puts you on notice that release of data by you is unauthorized and a release of GSI confidential information and will cause financial harm to GSI."

[Page 326]

Do you see that?

A. Yes, I see it.

Q. And do you recall what the Board's response to that letter was?

A. Well, they were generally consistent. They never tried to solve the problem and come and sit down and understand what's going on. They would always just restate their position.

Q. Their position.

A. Whatever it was.

Q. Okay. I'll just --

A. But I don't recall a response. I'm sure you have one.

Q. Okay. I do.

It is Exhibit R-274, and it's a letter from the Newfoundland Board June 18, '99. And the letter is to T.D. Davey Einarsson.

Take your time to -- you can read it. I'm sorry that the copy is not great, but I think it's legible. Just read it, and then I'll read the text.

A. This is a fascinating letter.

Q. Well, I'll just read it into the record.

[Page 327]

"While the Board understands your position, the Board does not agree with the legal analysis offered on your behalf respecting the release of the subject data provided by GSI. We have, for policy reasons, nevertheless agreed to withhold such data for a period of 10 years, as stated in my February 24, 1999, letter sent to you.

"Subsequently in a letter dated May 13, '99, from Neil DeSilva and in an attempt on our part to be as accommodating as we could, we offered to notify GSI of the parties requesting nonexclusive data provided by GSI, providing that the requesting party does not object to such notification. By your letter of June 1, '99, you have not accepted our offer to implement that procedure. Consequently, we will not notify you of such requests."

Then I'll just read the last paragraph or last two paragraphs: "The Board believes that the disclosure of information obtained as a result of carrying on a work or activities authorized under our Accord Acts. I refer in particular to Section 119 and Section 115 of the federal and provincial Accord Acts

[Page 328]

respectively. The Board intends to continue the practice of making such information available to the public following the expiry of the specified periods, except for nonexclusive seismic, which period has been extended. To my knowledge, the Board has never previously agreed to do otherwise.

"I trust this will clarify any confusion respecting our positions on this important matter."

This is the Board disagreeing with GSI's legal analysis that we had just looked at previously; is that right?

A. And what's fascinating in my Witness Statement --

Q. If you could just answer yes or no and then go ahead.

MS. LEMMENS: Excuse me. He will answer the question as he wants to. If you want to ask him a further question, please go ahead. But you can't tell the witness it's yes or no.

MR. LUZ: Okay.

THE WITNESS: What I find fascinating is in my Witness Statement we have the memo, internal memo

[Page 329]

of the C-NLOPB saying -- informing them that common law, the Access to Information Act Section 20, and copyright prohibits the disclosure of data. Yet this letter is totally the opposite thing. I find that fascinating.

Now we know all this in hindsight. It casts a different light on these kind of letters.

BY MR. LUZ:

Q. But this is the Board's position conveyed to GSI in June 18, 1999, that it disagrees with GSI's legal analysis?

A. Externally, that's their position. Internally, apparently it was different.

Q. Okay. Thank you.

MR. LUZ: That's been almost an hour. I wonder if that's a good time for a break, or Mr. Einarsson or if the Tribunal wants to continue on, that's fine.

PRESIDENT WALLGREN-LINDHOLM: I believe this is a good time to break. Thank you.

We will be back in -- we will be back a quarter past 11:00.

[Page 330]

THE WITNESS: Thank you.

PRESIDENT WALLGREN-LINDHOLM: Just a second. Mr. Einarsson, I want to remind you that you remain under testimony, so you cannot discuss your testimony with anyone, and you cannot liaise with Counsel.

THE WITNESS: I understand. Thank you.

PRESIDENT WALLGREN-LINDHOLM: Thank you.

(Brief recess.)

PRESIDENT WALLGREN-LINDHOLM: Can we proceed with the cross-examination of Mr. Einarsson?

Are you ready, Mr. Luz? Thank you.

MR. LUZ: Thank you, Madam Chair.

BY MR. LUZ:

Q. Welcome back, Mr. Einarsson.

A. Thank you.

Q. And I appreciate your patience for this. Thank you.

You'd mentioned earlier that GSI started to make access to information requests to the Boards in order to obtain information about who specifically was accessing GSI's data from the Boards.

And -- do you recall that?

[Page 331]

A. Yes, I do.

Q. And that started around the year 2000?

A. I believe it was 1999. My dad and I had a conversation. We were quite -- getting quite alarmed, so I believe I did a request from one or two Boards and then we did one to all three, and they just refused to answer. We were trying to find out what exactly was happening with our data, and that's when we had to do the Compel Court Order in Calgary here to force them to answer us.

Q. Okay. We will just pull up Exhibit C-194, which is a letter dated September 20, 1999, from GSI to the National Energy Board.

Is this one of the letters that you said you recalled?

A. That may be it.

Q. This one says: "It is our understanding that confidential information provided by our organization to the Board has recently been released to a number of third parties. Please provide to the attention of the undersigned the names and addresses of all third parties who have, within the last

[Page 332]

36 months, requested and been granted access to information concerning or provided by our organization to the Board, together with details of the information provided."

Do you see that?

A. I do.

Q. Okay. Do you recall the Board's response to the request?

A. I recall the generalities of it. I think that they were -- and this was a common theme over many years of doing these requests. They would use the Act to protect the recipients of our data. And they didn't want us to give us the names or their confidential information or what have you.

Similar to this Section 20 I had mentioned a few minutes ago, which should protect our data from being released because it is a trade secret and it is financially harmful to us, but instead, it turned out the Access to Information Act was flipped on its head, and it was used to conceal information from us in many instances.

Q. Okay. I think we can take a look at an

[Page 333]

example that I think may be what you're referring to.

Let's pull up Exhibit R-650.

This is a letter from the National Energy Board dated 21 March 2000 to you.

Do you recall receiving this letter?

And take your time to review it.

A. Yeah. This is part of the confusion for us. They said they looked back -- available records going back 42 months, and they couldn't find any records. I believe that was this response.

Q. Okay. Let's -- before we get to it, I'll just read the Second Paragraph: "As you are aware, the information you provide to the Board for the purposes of the Canada Oil and Gas Operations Act, or the Canada Petroleum Resources Act, CPRA, is kept in our Frontier Information Office, FIO, after it has been released from privileged status pursuant to Section 101 of the CPRA. A person who wishes to consult any information in the FIO makes an appointment to do so and attends at the FIO. Once in the FIO, the person may consult and photocopy any released information respecting oil and gas

[Page 334]

Exploration and Production operations on Frontier Lands. The Board does not record any specific information viewed by a person conducting research at the FIO, therefore, the Board does not have any record of the persons who have had access to specific information concerning or provided for by your organization in the FIO."

Just in the middle of the paragraph where it says -- it's referring to the CPRA Section 101 and that information at the Frontier Information Office: "The person may consult and photocopy any released information respecting oil-and-gas exploration and production operations on Frontier Lands." So at this time the Board was saying that, once released from confidential status, you could go to the FIO to get, consult the data and photocopy it; is that right?

A. I read what they are saying, but I mean, we did get subsequent replies from them that showed information being borrowed and showing the person's name, showing the datasets that were taken out and so forth. So subsequently we did get a lot of

[Page 335]

information from them. So I found that this letter was not accurate or true --

Q. Okay.

A. -- later on.

Q. Right. You, yourself, went to the FIO shortly after this letter to see what was happening at the Boards; is that right? Do you recall?

A. I know I've been there maybe once or twice, but I don't recall the timeframe. I'm sorry.

Q. Oh, it's okay. Let's pull up Exhibit R-649. And this is a Liability Agreement Borrowed Materials.

Do you recognize your name, your signature?

A. Yes, that's my handwriting. That's that oil Company I mentioned to you, and that's GSI Survey there, 8620G5.

Q. Okay. And it's dated November 3, 2000, and it looks like there's a return date of November 8, 2000. Do you recall what you were doing with GSI's materials?

A. I don't know. It might have been for -- our lawyers wanted to see it or something like that. I actually do not recall.

[Page 336]

Q. Okay. That's fine.

A. But -- yeah. That would have had to have been the purpose.

Q. Okay. And you've mentioned later that you went to court later to get the access -- to make the -- to get the Boards to release the names under the Access to Information Act of people that were borrowing from the Boards.

Do you recall that?

A. Yes. Well -- and that was really strange, too, because normally you don't just ask for names. You get the records that have the names. And we never did get the records until many years later, and that's when we saw the copying. The spreadsheets that the Boards created, which is very unusual to create something in reply to an Access to Information Request gave us no indication of copying or copyright violations.

Q. Okay. Let's just go to Exhibit R-645. This is an affidavit that you filed in the Federal Court of Canada in this Access to Information Act litigation, and I just want to look to Paragraph 3 where it

[Page 337]

says: "As a condition of granting Licenses for the conduct of Seismic exploration, the Respondent National Energy Board requires of GSI and other Licensees that they deposit a copy of the data collected by them with the Board. The Board has adopted the practice of releasing copies of the data to third parties without GSI's consent."

Do you recall that?

A. Not specifically, but it looks like I did that, yeah.

Q. Right. So that's what you -- as of the date of this affidavit, which I should actually read into the record. It's December 11, 2000, is the Registry date of the Federal Court of Canada. Okay?

And just for the record, do you recall filing similar affidavits with respect to the Nova Scotia and Newfoundland Boards?

A. I honestly don't recall. There were too many pieces of litigation that we were forced into.

Q. I totally understand. And this is in the year 2000 so I understand that.

Just for the record, we will just them up

[Page 338]

just to confirm. It is Exhibit R-646, and this is an affidavit filed on the same date, December 11, 2000, by you, Paul Einarsson, H. Paul Einarsson in the action GSI v. The Nova Scotia Board, and the Paragraph 3 says: "As a condition of granting licenses for the conduct of seismic exploration for the Respondent Canada-Nova Scotia Offshore Petroleum Board requires of GSI and other Licensees that they deposit a copy of the data collected by them with the Board. The Board has adopted the practice of releasing copies of the data to third parties without GSI's consent."

So that was the practice that you understood at the time was that of the Nova Scotia Board?

A. Well this is what they were telling us when we did this NEB Access to Information Request, as you saw, they said there were no responsive records. So we don't know exactly what was happening.

Q. Sure.

A. They were saying things.

Q. Sure. We'll come to that eventually, but, again just for the record, we'll open up R-647, which

[Page 339]

is another affidavit filed -- I'm trying to see the stamp date on this, 8th December 2000, and it's in the matter of Geophysical Service Incorporated against the Canada-Newfoundland Offshore Petroleum Board and Information Commissioner of Canada, and again, we see at the third paragraph the same statement: "As a condition of granting licenses for the conduct of seismic exploration, the Respondent Canada-Newfoundland Offshore Petroleum Board requires of GSI and other Licensees that they deposit a copy of the data collected with them with the Board. The Board has adopted the practice of releasing copies of the data to third parties without GSI's consent."

So that was your understanding with respect to the Newfoundland Board at the time?

A. Well, this is from my Counsel, so I guess that was his understanding.

Q. Okay. But this is your signed affidavit; is that right?

A. Yes. That's mine. Yeah.

Q. Okay. Okay. You say -- I'm going to ask you some questions about the offshore Seismic Data

[Page 340]

business in Canada around this time. You say that -- I think you'd said in your Witness Statement before that there are about 15 to 20 companies in the Canada offshore Seismic Data industry?

A. Those are the only ones that effectively can drill a well. There are some little ones, but they're interest holders that -- or they try to get somebody to farmin. But you are really talking about companies that can actually afford to drill a $200 million well with a 5 percent chance of success. You have to be big.

Q. Right. Right. And those are the companies that would license data from --

(Overlapping speakers.)

A. It's a very small group.

Q. It's a small group. Okay.

MR. LUZ: I have a few questions about some of the confidential documents, so I don't know if -- I guess we have a public feed, so we will just cut off the public feed so that -- just let me know when we're ready to go.

PRESIDENT WALLGREN-LINDHOLM: Yes. To the

[Page 341]

best of my understanding, there is nobody in the room that needs to be cut off, so it's only the feed; right? It's done?

(Comments off microphone.)

(End of open session. Confidential information follows.)

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(End of confidential session.)

OPEN SESSION RESUMED

BY MR. LUZ:

Q. I'm just going to come back to the Access to Information Act litigation that we were talking about earlier that GSI had started in 2000.

Do you recall the Federal Court of Canada, ruling on that, ruled in GSI's favor saying that the Boards had to disclose the names of the requestors of GSI's data?

A. Yes, I believe that's correct.

Q. Okay. So let's pull up Exhibit C-197. And this is the Judgment of the Federal Court of Canada dated April 25, 2003.

Do you recall -- this is the Judgment that we were talking about.

A. It looks like it is, yes.

Q. Okay. Let's just quickly look at Paragraph 7. The last sentence of that paragraph

[Page 354]

says: "Each of the three Boards has adopted the practice, on request, of releasing copies of the data deposited with it by the Applicant to third parties, without consultation with or consent of the Applicant, following the expiration of a period of time set by law or by policy of the appropriate Board."

That reflects what you had said in the affidavits from 2000 that we looked at earlier?

A. This was the position of the Boards. I stated that.

Q. Right. I want to just take you -- and again, I know you're not a lawyer, so I'm not asking for legal interpretations and so on, but I'm just going to take you to Paragraph 75 of the Judgment, where it said: "I'm satisfied that it is beyond doubt that the Seismic Data provided by the Applicant to the Canada-Newfoundland Board was information or documentation provided for the purposes of Part II or Part III and, thus, fell within the ambit of the privilege provided by Subsection 119(2) of the Act. I'm equally satisfied that, by virtue of Paragraph 119(5)(d) and, in particular,

[Page 355]

Subparagraph (ii) of Paragraph (d), that privilege expired five years following the date of the completion of the seismic work to which the information or documentation related. Thus, on the expiration of that five-year period, it was entirely open to the Canada-Newfoundland Board to make such information or documentation available to a requestor."

That was inconsistent with GSI's position taken to that point, was it not?

A. Yes.

Q. Okay.

A. It also had nothing to do with the case at hand.

Q. Okay.

A. I don't know why it was in there.

Q. Okay.

A. It happened quite a bit.

Q. Right. But the Statement was of concern to GSI?

A. Well, I don't know what to make of it. It didn't mention the Copyright Act, so I don't know what

[Page 356]

to do with that and I don't know how those laws relate to the other laws.

Q. Sure.

A. In Canada.

Q. Okay. So as we said and acknowledged before, after this Judgment, the Boards started providing information about requests to the Boards with details of who had made those requests. Is that your recollection?

A. Can you restate that. I'm sorry.

Q. After this Judgment, the Boards started disclosing the names of requestors in response to GSI's Access to Information Requests.

A. Yeah, well, as I said, it was very unusual. The Boards -- normally, when you do a Freedom of Information Act or Access to Information Request, you are requesting existing documents and records. So what was very unusual here was the Boards created spreadsheets with very limited information. They put the names, the addresses, I believe the dataset of GSI's that was involved, the date, and that was it.

Q. Okay.

[Page 357]

A. There was no records. There were no evidence of copying and so forth. So we saw these names. We sent letters and notices and demands to every single one, and we got a few answers back and we took actions on those, and the others we kept investigating.

Q. Okay.

A. So we kept doing Access to Information Requests, and we find that, when you ask different ways the same question, we got different answers. So we learned about this process, that you have to ask it five ways to maybe have a hope of getting the information that you really need. So it wasn't until many years later that we actually were getting the records related to these, maybe five, eight years later, ten years later.

Q. Okay.

A. So we didn't get an honest full response to these, no.

Q. Let's pull up an example. It's R-526, which is dated June 4, 2003. It's a letter from the Newfoundland Offshore Petroleum Board to Curtis Dawe.

[Page 358]

Was that GSI's legal Counsel at the time?

A. I don't remember that one.

Q. That's fine.

A. Sorry.

Q. That's okay. The letter says: "Enclosed original of three-page document containing the names and addresses of all third parties who, in the 154 months preceding the 1st of March 2000, requested and were granted access to information concerning or provided by the Applicant, GSI, to the Respondent, C-NOPB." And then, if we turn the page, we can see that list, the spreadsheet I think you were describing previously, something like this.

A. Yes.

Q. Right.

A. This is one of the spreadsheets.

Q. Okay.

A. And like I said, it didn't give us a lot of information.

Q. So it gave the date of the Request, the program, the information requested and granted, the name of the person, and the address; is that right?

[Page 359]

A. Yes.

Q. Okay. Let's pull up R-651. This is a letter dated 9 June 2003. I may actually not have the entire document, but -- and it's from the NEB to GSI.

It says: "In compliance with the Order of Mr. Justice Gibson dated April 25, 2003, the National Energy Board herein discloses to GSI the names and addresses of third parties who, within 180 months preceding March 2, 2000, had requested and been granted access to information concerning or provided by GSI to the Board, together with the details of information provided to the third party."

And then there was a "request date," "program," "name," referring to PanCanadian Petroleum; is that right?

A. Yes, which became Encana. Ovintiv now.

Q. Okay. And then we'll just pull up Exhibit R-652. This is from the Nova Scotia Board, dated November 28, 2003, and it's addressed from the Nova Scotia Board to you, and it contains some of the information in response to GSI's Access to Information Request.

[Page 360]

A. Oh, can I see the whole thing? I notice NEB only had one, one or two disclosures, which is shocking.

Q. Right. Yeah.

A. That's how they responded to us.

Q. Okay. No, go ahead and take a look at the whole document. You can scroll through.

A. So it's just one disclosure?

Q. There is one there. There's Kerr McGee.

A. Now do you see the problem I was explaining earlier? NEB tells us one or two, and Nova Scotia tells us one.

Q. Okay. If you keep scrolling through, you can see.

A. Is there more?

Q. Yeah. There's more.

A. Well, it was pretty limited, if I recall.

Q. By this time, GSI had some of the information about some of the companies that had been accessing --

A. We had some and our Counsel sent --

(Overlapping speakers.)

[Page 361]

1 MR. LUZ: I'm sorry.

2 BY MR. LUZ:

3 Q. By this time, GSI had some information about

4 companies that were accessing its data?

5 A. Yes. And the key word is "accessing," so we

6 didn't know if copying was occurring or publishing or

7 any of these things, and this is why all of these went

8 to my Counsel. They sent notice and demand letters

9 out, and, actually, one of the cases that answered us

10 was Calwest, which ended up in the Common Issues.

11 Everyone jumped onto the Calwest Case, and that turned

12 into a much bigger thing. 45 lawyers against my

13 three.

14 Q. Okay. Let's just look at, quickly, one of

15 the demand letters that you had talked about. It's

16 R-659, and it's dated November 2, 2003. And it's from

17 you to Lynx Canada, and it says: "We have been

18 advised that your company, Lynx Canada Information

19 Systems, has accessed our geophysical data program

20 Number 9424-G5-5P at the National Energy Board on

21 April 17, 2002, and March 25, 2003, and program

22 Number 838-9-8-14 on April 27, 2001, and program

[Page 362]

1 Number 8624-G5-08P at the Canada-Nova Scotia Offshore

2 Petroleum Board on November 15, 1999."

3 "This information is confidential to GSI and

4 subject to GSI's claims of copyright. We hereby

5 demand that you return this and all Seismic Data

6 belonging to GSI immediately and advise us of any

7 copies you have made of the data and to whom they have

8 been distributed. Failure to do so may result in GSI

9 taking legal action against Lynx without further

10 notice except as required by the Alberta Rules of

11 Court."

12 So this was one of the letters that you had

13 talked about earlier where, once you found out from

14 the Access to Information Requests, you sent a demand

15 letter to the company?

16 A. This is the position of weakness we were in.

17 We were having to ask these guys if they made copies

18 or what they did with our data. Most of them didn't

19 respond.

20 Q. Okay.

21 A. And in the case of Lynx, they didn't

22 respond. But we had other information points about

[Page 363]

1 Lynx, and we ended up suing them. But because of the

2 common issues, this is one of the companies that has a

3 ton of our data, and to this day, we had to pay them.

4 We had to pay millions of dollars to these companies

5 that have our data still.

6 Q. Okay.

7 A. They were rewarded by the Government of

8 Canada. They now have the Contract for the Offshore

9 Data Repository because Canada was fostering this

10 piracy business.

11 Q. Okay. I'm just going to skip ahead a couple

12 of years and ask a few questions about the prelude to

13 the litigation against Encana that started in 2007; if

14 you recall that?

15 A. Yes.

16 Q. If we can pull up Exhibit R-661. It's a

17 letter from GSI dated May 30, 2006.

18 Do you recall this letter?

19 Take your time to review it

20 A. Oh, I recall it, and I recall the meetings.

21 And I recall every painful detail of dealing with this

22 company. We still have two lawsuits against them,

[Page 364]

1 10 years-some later.

2 Q. Okay. I think it's the second sentence of

3 the letter -- well, I'll read the first

4 paragraph: "GSI has discovered that Encana has

5 accessed and is in possession of GSI's geophysical

6 data from the Beaufort Sea area, specifics of which

7 are attached as an appendix to this letter. GSI has

8 no specific knowledge of the source of this data other

9 than records evidencing this data being accessed by

10 Encana from the National Energy Board. GSI's records

11 do not show Encana having licensed this Seismic Data

12 respecting its possession or use."

13 So GSI knew that Encana had gotten the data

14 from the National Energy Board and presented an

15 invoice for it?

16 Is that what the purpose of this letter was?

17 A. Well, this one is a funny one. We go over

18 there. We had been providing Encana with maps of our

19 data in this area and showing them quality inspecting

20 our data at multiple meetings. And then we went over

21 there. And in their board room, they had a whole

22 bunch of boxes of all this stuff. And we see our logo

[Page 365]

1 on it -- our trademark. And I could see it was paper

2 sections that were not from us. I could see the

3 Government ID number on them. So we knew they came

4 from the government.

5 At the time, we speculated National Energy

6 Board, but it actually was much worse than that.

7 Encana got into the piracy business. They did a Joint

8 Venture with KP Seismic, a scanning company. They

9 copied $70 million of our data in the Artic. They

10 found a prospect, drilled two wells on it and sold

11 those wells, as well as our licensed data that we

12 licensed to Encana, plus data from Lynx, plus data

13 from KP Seismic that was scanned -- GSI data -- that

14 all ended up over at a company called MGM that bought

15 these wells.

16 We are in litigation on that still to this

17 day. And we have all the evidence.

18 Q. Okay.

19 A. It's an unbelievable story. And I think the

20 first lawsuit was dismissed for limitations or some

21 reason because of this slow trickle of information we

22 were getting from Canada. It's been a horrible thing,

[Page 366]

1 and we never got any business from them again when we

2 caught them in all this -- this mess.

3 Q. Okay. And as you said, after GSI sued

4 Encana in 2007, they didn't license anything from GSI

5 again?

6 A. I don't think so, no. They are very

7 adversarial. And, again, this was caused by -- all

8 started with this government creating this competing

9 data against us and this whole piracy business.

10 It just interfered in our relationships.

11 And then inducing our customers to sell GSI data to

12 them, as if they owned it, in these Secondary

13 Submissions when they didn't own it.

14 They had no right to convert it. And it

15 goes to a lease, an oil-and-gas lease. Our data was

16 converted to offset cash commitments on these

17 oil-and-gas leases; and, yet, we don't get a royalty

18 on those leases. We get nothing from the oil that

19 comes out the ground. That is not accounted for in

20 this.

21 Q. Okay.

22 A. And then we are going to nitpick over little

[Page 367]

1 pennies here and there. The extent of what's happened

2 to us, and what Canada has done is, I can't even

3 explain it to you. And we tried to explain it to

4 these bureaucrats, and they just forged ahead.

5 Q. Okay. We will, actually, come to some of

6 those exchanges.

7 Let's go ahead up to R-275. It's a letter

8 dated August 25, 2009. I was just checking on the

9 time.

10 Do you recall your conversations with

11 Newfoundland and Labrador that was happening around

12 this time in 2009?

13 A. I don't recall, specifically. I remember I

14 wrote -- I was trying to find anybody that would

15 listen.

16 Q. Okay. This letter from the Board to you

17 said: "We are not aware of any changes in legislation

18 or interpretation thereof, which would cause the Board

19 to change its current practices of allowing disclosure

20 of geophysical Seismic Data at the conclusion of the

21 'privilege' period described in the legislation or as

22 extended by Board policy."

[Page 368]

1 That's one of the responses that you got, as

2 you were saying, in your exchanges with the Board?

3 A. Sure.

4 Q. Okay.

5 A. I got lots of responses.

6 Q. Pull up Exhibit R-276. It's a letter dated

7 June 9, 2010, from the Newfoundland Board to you.

8 Let's take a look. Just take your time to read the

9 letter, so you refresh your memory if you recall

10 getting it.

11 Just let me know when you're ready.

12 Okay. Sure.

13 A. It needs to go up. Thank you.

14 Q. No problem.

15 A. I've read it.

16 Q. It's a letter -- and again, I will

17 apologize. Bear with me as I read it into the record.

18 I'm just going to read the three middle paragraphs.

19 So Paragraphs 2, 3 and 4:

20 "As I indicated in my letter of August 25,

21 2009, the Canada-Newfoundland and Offshore Petroleum

22 Board stands by its long-standing interpretation of

[Page 369]

1 the Canada-Newfoundland Accord Implementation Act,

2 permitting the disclosure of GSI data at the

3 conclusion of the privilege period.

4 "The Board's practice to release geophysical

5 data has been in place for years, and GSI has

6 continued to acquire Seismic Data in the Newfoundland

7 offshore area and submit it to the Board with full

8 knowledge of the Atlantic Accord Act provisions and

9 the Board's disclosure practices. GSI voluntarily

10 applied for geophysical program authorizations to

11 conduct speculative seismic operations in the

12 Newfoundland offshore area knowing that eventual

13 release of the acquired data would occur."

14 "We have considered the representations you

15 have put forward in various forums previously and

16 respectfully disagree with your position. As it is

17 obvious that our positions cannot be reconciled, I do

18 not feel there is any value in engaging in a

19 protracted debate on the relative merits of our

20 interpretation of various pieces of legislation."

21 So this was the Board saying that it

22 disagreed with GSI's position with respect to the

[Page 370]

1 disclosure of Seismic Data; is that right?

2 A. The letter speaks for itself.

3 Q. Okay. I'm going to take you to some

4 correspondence that you had with the National Energy

5 Board around this time, as well.

6 Do you recall in 2008 that GSI applied to do

7 a seismic survey in the Labrador Sea?

8 A. I believe so.

9 Q. Okay. I'll pull up Exhibit 288. I'm sorry.

10 I apologize. Exhibit R-288.

11 Just take your time and look through it and

12 just say when you need to scroll down. Okay?

13 So this is the application that GSI did with

14 respect to a seismic survey in the North Labrador Sea

15 in 2008.

16 Now, I'll just get to the last paragraph

17 where it says: "This survey is classified as

18 nonexclusive and the information will be disclosed

19 pursuant to Section 101 of the Canada Petroleum

20 Resources Act. GSI must file a complete report to the

21 National Energy Board as outlined in the Canada Oil

22 and Gas Geophysical Operations Regulations one year

[Page 371]

1 after project completion."

2 Do you see that?

3 A. Yes.

4 Q. And do you recall GSI going through with the

5 project and submitting the Report, as requested?

6 A. I don't know.

7 Q. Okay. I'll just quickly pull up

8 Exhibit R-298. This a letter from the National Energy

9 Board to Mr. Davey Einarsson dated January 26, 2010.

10 The subject matter is "Second Request Outstanding

11 Report for GSI 2D Marine Seismic Survey North Labrador

12 Sea 2008."

13 Do you recall why there was a Second Request

14 for this Outstanding Report for this survey?

15 A. No.

16 Q. Okay.

17 A. Of course, my staff are all being let go at

18 this time, as the effects of Canada's attacks on our

19 company were being felt. So I didn't have my full

20 staff like I had. It caused a lot of turmoil and

21 upheaval and then all the lawsuits.

22 We were spending our time on all kinds of

[Page 372]

1 nonproductive things instead of creating value,

2 promoting Canada with new data, bringing new

3 players -- all this nonproductive effort. And it was

4 a big distraction, a huge burden on our company. I

5 can assure you.

6 Q. I can imagine.

7 Let's pull up Exhibit R-299, because I think

8 it reflects some of what you may have just said. It

9 is an email exchange between yourself and Bharat Dixit

10 of the National Energy Board. Just scroll down to the

11 last paragraph where it says "February 4, 2010." You

12 can just read it and refresh your memory.

13 A. Okay.

14 Q. So this is --

15 A. So my memory was good.

16 Q. Right. It was.

17 So this is in February 2010, where it

18 says: "GSI has been forced to reduce staff by more

19 than 90 percent, and there are no qualified staff to

20 prepare the Report due to the economy. And combined

21 with the fact that GSI is expending all our resources

22 on lawyers to address the two copyright violations the

[Page 373]

1 NEB has facilitated in providing GSI's Seismic Data to

2 third parties, although we believe the NEB owes GSI a

3 duty of confidence."

4 Do you see that?

5 A. Yes.

6 Q. What was happening in the economy at this

7 time?

8 A. There was very little activity in the

9 oil-and-gas exploration area.

10 Q. Right. And that was having an impact on

11 GSI's business?

12 A. It had a small impact on us. The biggest

13 impact was all our lost license revenues, all the

14 massive legal fees, and the interference in our

15 relationships with our customers because of

16 this -- not only the submitted data, the secondary

17 submits, but also our clients getting the data from

18 government and scanning companies and other parties

19 caused a real problem. So it's no scorched-Earth

20 litigation strategy. It was we couldn't abandon the

21 copyright, and I didn't want to leave the key in the

22 door and walk away.

[Page 374]

1 Q. Okay. I'll just go through a couple more

2 exchanges between GSI and the National Energy Board.

3 Exhibit C-206. It's dated April 22, 2010.

4 Do you recall this letter?

5 A. No.

6 Q. Okay.

7 A. It looks like a form letter that we used

8 every time.

9 Q. Right. The second paragraph says: "GSI

10 wishes to notify you of its position respecting the

11 status of the GSI information and the Board's legal

12 obligations in respect of this information."

13 It goes on to say: "GSI hereby notifies you

14 that the GSI information contains confidential

15 information and trade secrets of GSI and is subject to

16 copyright in favor of GSI"; is that right?

17 A. That's right.

18 Q. Right. So they are, again, reiterating

19 GSI's position. We will just go to the response of

20 the National Energy Board, which is C-207. And it's

21 the National Energy Board dated May 21, 2010,

22 addressed to you.

[Page 375]

1 Do you recall this letter?

2 A. Not specifically, but I'm starting to recall

3 it more looking at it.

4 Q. Okay. If you want to go through

5 it -- again, there is a lot of information in here,

6 but I will just skip ahead to the conclusion for the

7 sake of time where it says: "For the reasons set out

8 above, the Board is not in a position to provide

9 confirmation to GSI that the subject nonexclusive

10 seismic information will be held confidential

11 indefinitely. Rather, in a manner consistent with the

12 Board's cover letter to GSI's authorization, the Board

13 will maintain the subject information confidential for

14 a 15-year period. Thereafter, the Board intends to

15 make the nonexclusive seismic information public via

16 the FIO."

17 So that was the Board's position with

18 respect to this new project this GSI was doing?

19 A. Yes.

20 Q. And then that led to another exchange,

21 Exhibit R-305, which is dated June 3, 2010. It is

22 from GSI's lawyers, Gowling's.

[Page 376]

1 Do you recall this letter as well?

2 A. I do.

3 Q. Okay. Again, we don't have to go through it

4 all, but we can skip to the end where it cuts to the

5 chase where it says: "GSI maintains its request that

6 NEB cease and desist forthwith from making the GSI

7 information available to the public through lending

8 arrangements or otherwise, and from reproducing the

9 GSI reports for the purpose of making the GSI

10 information and GSI reports available to the public."

11 That was GSI's request again?

12 A. That's correct.

13 Q. Okay. And we'll just go to the response of

14 the National Energy Board, 22 July 2010, which is

15 Exhibit R-306.

16 Do you recall this response from the

17 National Energy Board?

18 A. Yeah. I believe this issue went to trial.

19 Q. Right. Okay. And it said: "The Board has

20 not been persuaded that a modification in its process

21 relating to the release of Seismic Data is warranted.

22 The Board's position has not changed from its May 21,

[Page 377]

1 2010 correspondence."

2 "Through the May 10th meeting, held between

3 GSI and NEB staff, as well as the 21 May 2010

4 correspondence, the Board has attempted to assist GSI

5 in understanding its rationale for the release of

6 Seismic Data. The nature of this 3 June 2010

7 correspondence suggests, however, that there may be an

8 intention of litigation in relation to this matter.

9 Accordingly, the Board requests that any future

10 correspondence relating to the release of Seismic Data

11 should be 'lawyer to lawyer' with NEB legal Counsel."

12 So at this point the positions

13 were -- couldn't be reconciled and GSI later sued; is

14 that right?

15 A. Yes.

16 MR. LUZ: I don't have too much more to do.

17 I'm wondering if I could ask for an indication of how

18 much time I've used already. And I don't know when

19 lunch is scheduled for.

20 SECRETARY FISCHER: 2 hours and 5 minutes.

21 MR. LUZ: Okay. I don't have the schedule

22 in front of me. Is lunch scheduled? I don't think I

[Page 378]

1 have too much longer, but I don't want to -- what time

2 is it now? Oh, I think I can finish.

3 PRESIDENT WALLGREN-LINDHOLM: What do you

4 think, Mr. Einarsson? Are you ready to go a bit if we

5 decide that we would go until lunch?

6 THE WITNESS: Yes.

7 PRESIDENT WALLGREN-LINDHOLM: Okay. We will

8 see here.

9 Okay.

10 MR. LUZ: Madam Chair, I think I can

11 probably finish, if not exactly within 15 minutes,

12 just a little bit longer if it would just afford the

13 opportunity for...

14 PRESIDENT WALLGREN-LINDHOLM: Is that fine

15 with you, Mr. Einarsson?

16 THE WITNESS: Yes.

17 MR. LUZ: My friend across has given the

18 thumbs up as well, so if that's okay.

19 PRESIDENT WALLGREN-LINDHOLM: I didn't

20 register the thumbs up, but I think we are good then.

21 Okay. Thank you.

22 BY MR. LUZ:

[Page 379]

1 Q. Thank you, Mr. Einarsson. I know it's been

2 a long morning, so I appreciate your patience.

3 I'm going to just switch gears to some of

4 the -- some of what was happening in -- around this

5 time period. I'm just going to pull up Paragraph 99

6 of the Notice of Intent to submit a Claim to

7 Arbitration under NAFTA Chapter Eleven that was filed

8 by GSI in -- sorry. It's just the -- it's the Notice

9 of Intent to Arbitration in this case filed by GSI. I

10 know it was in 2018. October? October 10, 2018. I

11 apologize, it's -- that was a long time ago.

12 I'm just going to go to Paragraph 99 where

13 it said: "As a result of the regulatory requirements

14 to dry dock every five years, GSI was forced to put

15 both of its ships out of service for inspections,

16 disassembly and refit during late 2007 and 2008,

17 reducing revenues during the 2008 Financial Crisis,

18 and requiring over USD 20 million in upgrades and

19 additions to its ships and equipment. This set of

20 circumstances made it critical in 2008 and 2009 for

21 GSI to obtain as much work as possible through the

22 Canadian protection under the CTA," which stands for

[Page 380]

1 the Coasting Trade Act.

2 Do you recall the circumstances of GSI

3 spending around $20 million on upgrading its ships in

4 late 2007 and 2008?

5 A. I recall the criticism, oh, we're so stupid,

6 we did these ill-timed investments and we are bad

7 businessmen. These are regulatory requirements that

8 you pull these ships out of the water.

9 We were regulated by 24 different entities

10 to run our business. We ran it without one safety

11 incident for 10 years, which is a miracle in our

12 business. We were excellent operators. And we had to

13 pull those boats out of the water, and DNV requires

14 you -- for example, on your main engine, you have to

15 take the whole thing apart to inspect it. Well,

16 everybody does this. They rebuild it while you have

17 it apart.

18 So we did that. We also upgraded our reels

19 because the demand in the market was for longer offset

20 data. To image deeper, you have to have those

21 streamers further out because the sound hits at an

22 angle of incidence. So the deeper you go, the further

[Page 381]

1 out you have to have a receiver. So we were trying to

2 capture more of the -- what people wanted.

3 So we did that work. And right at that time

4 when we needed that business, Canada went outside

5 of -- circumvented the Coasting Trade Act with its new

6 work that it did under the UN Law of the Sea. We had

7 done the prior survey. We gave them extra data. We

8 bent over backwards to do a good job for Canada, but

9 they were trying to put the thumb on us in every way

10 possible, and tried to make us lose money.

11 And in the next one they cheated us out of

12 work circumventing the Coasting Trade Act saying the

13 DFO was one of the contractors, when in the previous

14 survey DFO wasn't. So they found ways to keep that

15 business from us right at a critical time when we

16 needed that work. And after investing millions of

17 dollars in our ships.

18 Then they allowed a foreign ship to come in

19 chartered, that had equipment put on it. They

20 disqualified our ship for removable equipment, the

21 streamers. We said we could put it on our ship.

22 Instead, they chartered a ship that had removable

[Page 382]

1 equipment put on it and used that. All the way from

2 the Mediterranean. It was unbelievable. They paid

3 three times what they would have paid us. But it was

4 to make sure that GSI got no revenue.

5 Then they flagged the ship Canadian to

6 circumvent our Coasting Trade Rights, and immediately

7 after the work was done, the ship unflagged. It was

8 unbelievable what Canada did.

9 And then they pull the act out from under us

10 and remove seismic ships from the Coasting Trade Act

11 but leave Canadian steamship lines with their little

12 sweetheart deal and their 3 percent tax that they pay

13 in Barbados. If you're not connected in Canada, you

14 don't get the good stuff. So this is what happened to

15 us right at this time.

16 It was very painful and it sucked a bunch of

17 my time trying to beg for help from the government and

18 they were just laughing. We -- I even have the emails

19 where they are joking, oh, anybody want to go to the

20 yard sale and buy stuff from GSI? I even offered to

21 sell my ships to Canada.

22 Q. Right. Okay.

[Page 383]

1 A. It was awful. It was a horrible time, and

2 it was unbelievable the conduct of Canada, what they

3 did to us. I'll never forgive this country.

4 MR. LUZ: Okay. Let's go to -- we have to

5 go into confidential session. I'm just going to -- I

6 just have two more documents just to go through

7 quickly.

8 (End of open session. Confidential

9 information follows.)

10 CONFIDENTIAL SESSION

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21 MR. LUZ: Okay. All right.

22 Mr. Einarsson, thank you very much. You've

[Page 390]

1 been really patient and I appreciate you going through

2 all of this with us today. I know you have been

3 through a lot. So thank you.

4 THE WITNESS: Thank you.

5 PRESIDENT WALLGREN-LINDHOLM: Thank you,

6 Mr. Einarsson.

7 So we will now break for lunch, but have you

8 concluded now your --

9 MR. LUZ: I have, Madam Chair.

10 PRESIDENT WALLGREN-LINDHOLM: -- cross-

11 examination.

12 MR. LUZ: Yes.

13 PRESIDENT WALLGREN-LINDHOLM: So we will go

14 for lunch and then there will be redirect, a small

15 redirect, and then we will see whether Respondent asks

16 for recross then after the redirect.

17 We have scheduled one hour and 15 minutes,

18 which means we are really actually right on schedule.

19 Wow.

20 So we shall meet back here at 2:00 p.m.

21 MS. TABET: Madam Chair, can we just confirm

22 that the witness continues to be sequestered.

[Page 391]

1 PRESIDENT WALLGREN-LINDHOLM: Yes. I was

2 going to. Yes.

3 MS. TABET: Apologies.

4 PRESIDENT WALLGREN-LINDHOLM: No, no. I am

5 slow.

6 Yes. I will remind you of your

7 sequestration, Mr. Einarsson. Thank you very much.

8 THE WITNESS: Yes. Thank you.

9 (Whereupon, at 12:50 p.m., the Hearing was

10 adjourned until 2:00 p.m., the same day.)

11 AFTERNOON SESSION

12 PRESIDENT WALLGREN-LINDHOLM: Yes. Good

13 afternoon, and apologies for the slippage. We will

14 now proceed to redirect of Mr. Paul Einarsson.

15 Ms. Lemmens?

16 MS. LEMMENS: Thank you, Madam Chair.

17 REDIRECT EXAMINATION

18 BY MS. LEMMENS:

19 Q. Good afternoon, sir.

20 A. Good afternoon.

21 Q. Can you confirm for the record that you

22 remain under oath at this time?

[Page 392]

1 A. I do.

2 Q. Thank you.

3 Sir, you were asked some questions this

4 morning about whether you were aware of disclosure and

5 copying of Seismic Data at various times.

6 Do you recall that?

7 A. Yes.

8 Q. There were many pieces of correspondence

9 that Mr. Luz showed you in which positions were being

10 taken by the Boards and by GSI.

11 Do you recall that?

12 A. Yes.

13 Q. In GSI's communications with the Boards or

14 the Government of Canada, what, if anything, did they

15 say to you about GSI's copyright in its Seismic Data?

16 A. I don't think they ever mentioned it or

17 responded back on that subject.

18 Q. And leading up to the Common Issues Trial,

19 what was your understanding about GSI's intellectual

20 property rights in its Seismic Data?

21 A. I thought Canada would honor things like

22 trademarks, copyright, confidentiality, all of those

[Page 393]

1 things. I expected the same that you get in other

2 countries and places.

3 Q. Sir, you mentioned in one of your responses

4 to Mr. Luz's questions something about "rules of the

5 game."

6 Do you recall that?

7 A. Unfortunately, yes.

8 Q. When did you first hear that phrase?

9 A. It was, I believe, during the Common Issues

10 Trial and also during questioning and

11 cross-examination and things like that involved in

12 that, I believe. But it's been parroted over and

13 over.

14 Q. And sorry, just to clarify, you heard about

15 it in questionings and cross-exams in "that."

16 What is "that"?

17 A. I believe in that action.

18 Q. In the Common Issues?

19 A. Yes. I believe so, yep.

20 Q. Sir, when did you know whether GSI could

21 enforce GSI's copyright in its Seismic Data or not?

22 A. Well, we kind of knew, I guess, at the end

[Page 394]

1 of the Common Issues. We were -- it says we had

2 copyright, but then in the next breath it said we

3 didn't, in a way.

4 Q. And just to clarify, is that the first time

5 that you knew?

6 A. That's the first time, yes, we knew from

7 Canada or a court. Yes.

8 Q. Sir, you were asked some questions by

9 Mr. Luz this morning about a specific exhibit. I'd

10 like to pull that up. It is R-273.

11 Do you recall looking at this letter, sir?

12 A. Yes.

13 Q. And do you recall being asked some questions

14 about providing GSI with notice about parties

15 requesting to access Seismic Data that is GSI's with

16 the Board there?

17 A. Could you say that again? I'm sorry.

18 Q. I just want to make sure that you're reading

19 it so that you know which letter that we're looking

20 at.

21 A. Yes.

22 Q. You also now have access to the keyboard and

[Page 395]

1 the mouse for the documents because we are controlling

2 them?

3 A. Yes.

4 Q. So this letter from the C-NOPB in 1999 had

5 indicated that "the Exploration Department will

6 endeavor to notify you of any requests for such data

7 collected through GSI, provided the requesting party

8 does not object to us notifying GSI of the request."

9 What, if any, notice did GSI receive about

10 parties requesting GSI's Seismic Data from the C-NOPB?

11 A. I don't think they ever notified us, not

12 once.

13 Q. Sir, to your understanding, do you know what

14 is being referred to here about a "requesting party

15 not objecting to us notifying GSI of the request"?

16 A. No, I don't. I mean, it just seems like a

17 catch-all to not respond because I think they would

18 all object.

19 Q. Do you know why they were being asked about

20 whether they objected or not?

21 A. Well, it would be because they are accessing

22 our data or copying it or something, but also in the

[Page 396]

1 Access to Information Act, we had a lot of responses

2 that were heavily redacted or not even provided to us

3 because the party objected using Section 20, the exact

4 section that I talked about that our lawyers said

5 would protect us. Instead, it was used to conceal

6 information from us about people using and accessing

7 and copying our data or whatever they were doing.

8 Q. Sir, there was a lot of information in that

9 answer. I just want to make sure that everybody

10 understands what you mean.

11 You had referred to Section 20 of the Access

12 to Information Act as both potentially protecting GSI

13 but simultaneously protecting companies that were

14 requesting access to your data.

15 Could you explain that a little bit more,

16 for clarity?

17 A. So in the Legal Opinion that we provided

18 Canada to be transparent and try to start a dialogue

19 from experts, legal experts in Canada at the time,

20 we -- they told us that the Access to Information Act,

21 I guess, was included in the Acts and it governed all

22 information submitted to the government, like ours.

[Page 397]

1 And Section 20 basically has clauses in it

2 where the submitter of the information can object to

3 it being disclosed if it is a trade secret, if it will

4 cause financial harm -- and I can't quite, off the top

5 of my head, remember some of the others, but there's

6 three or four of them in there. And of course, we fit

7 under all of those.

8 And so that was also referenced in the

9 internal memo at the C-NLOPB in around 1998 where they

10 were talking internally that the Access to Information

11 Act, trademarks, and copyright would prohibit

12 disclosure what they were doing. And they knew this

13 internally. I didn't know it now -- but I didn't know

14 it back then, but I now know it now that we've seen

15 this.

16 Q. Sir, you were asked about a letter from -- I

17 believe it was Max Ruelokke. I'm not sure if I'm

18 saying the name correctly -- in 2010. It was R-276.

19 A. Oh. I'm sorry. Can I just add to that last

20 comment? When I pressed the Boards for using that

21 exemption on my responses to my requests trying to

22 find out what's going on with my data, they said these

[Page 398]

1 objected because they would be financially harmed by

2 me going after them trying to protect my data. I

3 thought it was the most obscene argument, but that was

4 what the Boards told me on many occasions.

5 Q. Sir, turning back to the 2010 letter that we

6 have here, do you recall looking at this this morning?

7 A. Yes.

8 Q. And you were asked some questions about the

9 fact that the Newfoundland Board, the C-NLOPB, stated

10 its position in this 2010 letter.

11 Do you recall that?

12 A. Yes.

13 Q. How many times did GSI state its position in

14 response to letters such as these?

15 A. Hundreds, if not a thousand.

16 Q. What, if any, position was ever given by one

17 of the Boards with respect to copyright in the Seismic

18 Data?

19 A. The only positions I got were when Natural

20 Resources Canada signed one of our License Agreements

21 acknowledging it, when, for example, the Marc D'Orio

22 2010 letter said that the geologic survey, Natural

[Page 399]

1 Resources Canada would honor our copyright and not

2 make copies, not publish, not do anything without our

3 consent; the Borrowed Materials Forms say copyright

4 might be applicable, that everyone was signing at the

5 NEB and other Boards; the copyright notice at the NEB,

6 and I can't think of any other time when copyright was

7 mentioned or that Canada spoke about it. It's not in

8 the Acts either. The two -- the Submission Act and

9 the Disclosure Act doesn't have published copyright.

10 It doesn't mention anything. So to say everything was

11 so clear, actually, nobody knew.

12 Q. Now, in this letter, the Board goes on to

13 say that GSI voluntarily applied for geophysical

14 program authorizations to conduct speculative seismic

15 operations in the Newfoundland offshore area, knowing

16 that eventual release of the acquired data would

17 occur. What, if any, notice was GSI putting on its

18 submissions of its own Seismic Data to indicate its

19 position about the law?

20 A. Well, we provided -- I mean, hundreds of

21 pieces of correspondence with our position. We also

22 provided the Boards with stickers to put on our

[Page 400]

1 materials. And our materials, when we shipped it to

2 the Board, had copyright notices and warnings on the

3 materials. All of the paper sections, including some

4 of the ones you saw today -- and, unfortunately, some

5 of the ones that I saw in the expert reports that

6 Canada had, they have our proprietary notice on the

7 side. They also have our registered trademark being

8 used, confusing our customers, passing Canada's

9 competing data off as ours and -- by using that

10 trademark and then having all these proprietary

11 notices. It's like they weren't even there. They

12 just ignored them.

13 Q. Did Canada ever reject GSI's Seismic Data

14 for having those notices?

15 A. No. And they never commented when we sent

16 them big packets of stickers with letters asking them

17 to apply these to all of our data.

18 Q. Sir, you were also asked about a letter at

19 Exhibit R-526. I'd like to pull that up.

20 Do you recall looking at this letter, sir?

21 It's a letter from --

22 A. Yes.

[Page 401]

Q. -- the C-NLOPB to Curtis Dawe, Barristers

and Solicitors on June 4, 2003?

A. Yes.

Q. You may recall that this letter was

enclosing a list of names of parties that had accessed

GSI's Seismic Data?

A. Yes.

Q. You were asked who is Curtis Dawe. Do you

have any recollection of who Curtis Dawe is?

A. I think it's a law firm, I just don't

remember actually being with that one. But we used

about five or six in Newfoundland, so we must have

been using that one at that time. I'm surprised it

didn't go to the Gowlings here in Calgary. I'm just

surprised.

Q. I'd like to show you Exhibit C-434, sir,

because it relates back to this question about Curtis

Dawe.

Do you see here a transcript of proceedings

from last year, in which Trevor Glen Bennett of the

C-NLOPB was being cross-examined by myself on behalf

of GSI?

[Page 402]

A. Yes.

Q. I'd like to turn to Page 2. Do you see

reference there to Curtis Dawe?

A. Oh, that's interesting. Okay. Amy Crosbie.

Okay. Amy Crosbie was the lawyer that slowed down our

ability to discontinue those last two actions in

Newfoundland. Just days or a week after our Common

Issues Decision, these files had sat dormant, those

last two, and we hadn't done anything with them and

intended to discontinue them. And Amy Crosbie tried

to reinvigorate the cases, reactivate them, and they

were seeking a consent dismissal, and my advice at

that time was that they were trying to muddy up the

waters with our NAFTA or a potential further actions

that GSI could take by seeking this consent dismissal,

like we agreed to something, instead of just doing the

other way we were trying to do it. I can't remember.

But they fought us over it and delayed everything a

long time. So maybe they were adverse to us. So

maybe that letter was going to lawyers adverse to us,

not even to us.

Q. So, sir --

[Page 403]

A. It's very odd, that letter.

Q. Amy Crosbie here was representing the

C-NLOPB.

Do you see that?

A. Yes.

Q. If we turn back to the letter that Mr. Luz

had shown to you earlier, do you now see that the

C-NLOPB was communicating with its own Counsel?

A. That's what it appears to be. So that's

very interesting.

Q. So do you have any information that this

list of parties actually was sent to GSI?

A. I know we received something, but I don't

think we received this. That's why I was just very

puzzled by that, yeah.

Q. Do you know why the C-NLOPB sent this letter

to its lawyers rather than responding to GSI's

requested information?

A. I don't.

Q. Sir, you were also asked some questions

about regulatory upgrades to GSI's seismic vessels in

the 2000s.

[Page 404]

Do you recall that?

A. Yes.

Q. You had mentioned a statute, the Coasting

Trade Act. What was that Act to GSI?

A. Well, it was, quite honestly, not a very

important Act for us for many years. It helped

because we had a Canadian flag vessel. We invested

millions of dollars to make our ship compliant with

Canadian regulations.

For example, Canadian regulations for some

reason, the port holes have to be different sizes.

There is different regulations on the lighting for

helidecks. There is different regulations on the

firefighting equipment -- different from everywhere

else in the world, like, even the North Sea, which is

kind of the standard for our industry.

And so we had to make a lot of changes to

that vessel. It was a lot of investment. You also

have to have Canadian crew, which were very expensive,

and relative to what our competitors had.

And so the Coasting Trade Act gave us a

first right of refusal, essentially, on work in

[Page 405]

Canada. If our ship was suitable and available, it

would get preference to the work, and the other ship

would be blocked. So it was a trying to maintain

Canadian capacity and shipping.

We were the only seismic vessel, and that's

why we were singled out for some of these changes that

I mentioned earlier where they flagged a foreign

vessel. They disqualified us for removable equipment

on a chartered vessel of a competitor.

So the Canadian Transportation Agency just

threw us under the bus right at the worst possible

time in 2009, '10, and '11 when we needed that work

because there was very little industry work at the

time. And it was all linked to this issue of the data

because they were just trying to starve us so we

couldn't defend ourselves. So we couldn't be here.

Q. So what part of the Canadian Government

administered the Coasting Trade Act; to your

knowledge?

A. Transport Canada, I believe.

Q. So not the Boards?

A. Not the Boards, but they stayed in close

[Page 406]

communication. We saw lots of joint government

meetings about GSI, and they were all aware of the

data concerns that I had.

Q. I'd like to show you an exhibit, C-492, that

relates to this point that you've just made.

And you have control of the mouse, sir, if

you want to scroll. You should.

(Comments off microphone.)

A. Now it works. I turned it on.

Q. So, sir, we're looking at an email.

Do you see that?

A. Yes.

Q. And do you understand the context of what

this email is about?

A. Well, it looks like they are talking about

nonexclusive Seismic Data policy, but you've got NRCan

on here. I mean, people from NRCan. And they are

tying in this Coasting Trade issue. "Note: GSI is a

company that has been using the Coasting Trade Act to

challenge the use of foreign vessels." Well, that was

why the act was created is to create Canadian

capacity.

[Page 407]

Q. So from GSI's perspective, what relation, if

any, does the Coasting Trade Act have to GSI's

concerns about the Boards disclosing GSI's Seismic

Data, the nonexclusive Seismic Data policy?

A. Well, it is part of our business, and it

attacks our business. This is why they were tying it.

And we saw this in multiple areas, not just this one.

They canceled our business number for six or nine

months and then were demanding us to pay taxes. And

we said where? We had all kinds of harassment.

Q. And so, sir, I just want to understand,

we've got a Coasting Trade Act issue and a Seismic

Data Disclosure Policy issue, and so do you know if

there is any legal relationship between the two, other

than it was impacting GSI's business?

A. No. The only relationship was financial and

it was GSI. But it was worse than that. The

Government of Newfoundland, through Nalcor, invested

$30 million with a TGS Joint Venture. And then the

Premier bragged about how Newfoundland was so

brilliant, they got all their money back in three

months, at a conference.

[Page 408]

All of us in the industry were just shocked.

You don't make all your money back in three months in

the seismic business. So it was a very fishy deal.

Then TGS had a deal with NRCan, similar, on

a joint -- on a project where money flowed from TGS to

NRCan directly, Jacob Verhoff. We had the contract,

but then all my access information requests on both

those areas were blocked.

Q. Sir, this morning you were also asked about

some of your license agreements. I won't mention the

name of the counterparties, so we don't have to go

into confidentiality mode here for the Hearing. But I

think you'll recall that you were asked about a clause

in one of your license agreements this morning

regarding "data being disclosed to any governmental

agency, board, or tribunal, only if and to the extent

in the opinion of licensees' legal counsel, such

disclosure is required by law, regulation, or

regulatory guideline."

Do you recall that?

A. Yes.

Q. What is your understanding of whether a

[Page 409]

licensee was required by law to submit their licensed

GSI Seismic Data to the Boards for allowable

expenditures?

A. Well, this is another area that is a soft

spot for me. Our understanding is that this is

voluntary. It is normally used with exclusive data.

So an oil company has a lease. They obtain

some exclusive data. They hire a company like ours.

They pay us the full price, plus our profit. And then

they can submit the data to the Board and get credits

towards their cash obligations. So they are

converting that data.

But it makes sense for an oil company

because in Canada they don't do cash bids. In Canada

you say, "Oh, I'm going to do 100 million of work on

that lease." So, logically, it's kind of Canada is

entitled to those work products because that's what

the Company is bidding.

In the case of nonexclusive seismic, that is

not the case. We have licensed this data to a

company. They don't have ownership rights. We have

50 clauses in our license agreement prohibiting

[Page 410]

disclosure, conversion, sharing. It's a single-use

license.

And then to have these guys go and submit it

to Canada and get -- there has been millions of

dollars paid to our licensees for our data towards

leases, and we get nothing from those leases. So that

whole thing is crazy.

And in this action, I was shocked. Canada

says what we have been saying all along: "This is

voluntary. It's elective. The company selects what

expenses they want to submit for work credits." But,

yet, in one of my huge cases that I had with massive

damages, the judge rules, "Oh, no, this is part of the

Regulatory Regime. It is required. It is mandatory.

Too bad, GSI. You lose."

Now, we are shut off on that whole -- they

have driven a freight train through my license

agreement. There is no way you can protect anything

in this country. So that whole area on all of my

license agreements has been flattened now, as well as

many others.

Q. I'd like to take a look at that court

[Page 411]

decision, sir. It is at Exhibit R-444. We see here a

Decision of the Court of Queen's Bench of Alberta from

Justice Eidsvik again, and I'm just going to -- if we

could just look at the date of the Decision for a

moment. 2017.

Do you recall this case?

A. Yes.

Q. If we could scroll down to about

Paragraph 77, I believe. And so here we see an

analysis of the question: "Was Encana's submission of

an application and a report required by Canadian law?"

Do you see that, sir?

A. Yes.

Q. And if I could have you read for the benefit

of the Tribunal, Paragraph 79, please, out loud.

A. "In my view, for the reasons that follow, to

the extent that an application had any Seismic Data in

it (which I doubt, but need to determine)" -- they

do -- it is required in the list from the -- in that

geologic thing. It's a required submission. "Encana

was allowed to use the data in this way under its

grant of a license agreement since the data was being

[Page 412]

used for its 'own business operations.'"

Incredibly, even though it is submitted to

the Board that then gives it to everybody.

"Further, such submission was 'required by

Canadian law'" -- using those words that we have in

our license agreement --"to obtain the credits against

the deposit it made with the government for

exploration licenses."

It is completely the opposite of what is the

reality.

Q. So just to clarify, is it voluntary or is it

required by Canadian law, according to Canadian law

from the Courts?

A. Well, now, it is required. So they have to

submit reprocessed data, other versions, and this is

what is then being put under an oil company name as if

it's exclusive, breaking the rules that Canada

requires, and then releasing it within five years

because exclusive is released in a shorter timeframe.

That's why I said this 10-year, 15-year

timeframe, I don't know what that does because of this

issue. It is just a whack-a-mole. You can't keep up

[Page 413]

with it.

Q. Thank you, sir.

MS. LEMMENS: Those are all my questions on

redirect.

THE WITNESS: Thank you.

PRESIDENT WALLGREN-LINDHOLM: Thank you,

Mr. Einarsson.

Is there a request for recross?

MR. LUZ: No, Madam Chair, we don't have

anything to ask.

PRESIDENT WALLGREN-LINDHOLM: Thank you very

much.

ARBITRATOR LANDAU: No questions.

PRESIDENT WALLGREN-LINDHOLM: I had one

clarification, and it might be that it is for Counsel

to address. Just a second. I had it here. It is at

14:13:47. Just a second.

QUESTIONS FROM THE TRIBUNAL

PRESIDENT WALLGREN-LINDHOLM: Yes. It is at

Line 6/18 at 14:13:47 in the Transcript.

Mr. Einarsson states as follows: "And so that was

also referenced in the internal memo in the C-NOPB in

[Page 414]

around 1998 where they were talking internally." And

what my question is, is there a reference for this?

Where is it in the record -- or is it in the record?

MS. LEMMENS: We might just have to take

that away. I don't have an exact answer about what

exhibit that might be. But I think it also might be

the subject of some questions that I have for an

upcoming witness, so we may be able to resolve it.

PRESIDENT WALLGREN-LINDHOLM: My only point

was that, if it's a reference to something that is in

the record, it would be more useful to have the

reference.

MS. LEMMENS: Very good. We will endeavor

to do that. I don't know that Canada would have that

reference because it is in Paul Einarsson's Witness

Statements, so I think that's on us for homework.

PRESIDENT WALLGREN-LINDHOLM: Okay. Thank

you.

Now, Mr. Einarsson. We have concluded your

testimony. Yes?

THE WITNESS: I'm sorry. I had a couple of

small corrections to my Witness Statement. Is

[Page 415]

it -- and we never got to that. Should I be doing

that now before I leave.

MS. LEMMENS: Yeah, they were typos, I

think, more than anything.

THE WITNESS: There were some typos, they

are pretty minor, but...

PRESIDENT WALLGREN-LINDHOLM: Let me ask

what --

MS. LEMMENS: I don't think that they are

actually substantive, but...

THE WITNESS: Okay.

PRESIDENT WALLGREN-LINDHOLM: Are there any

objections? For good order.

MR. LUZ: We have no objections if they are

just minor corrections to the Witness Statement. No

problem.

PRESIDENT WALLGREN-LINDHOLM: Okay. Why

don't we take those corrections.

THE WITNESS: Okay. They're very little,

they're minor.

PRESIDENT WALLGREN-LINDHOLM: Also.

THE WITNESS: CWS-12, Clause 166(a), it says

[Page 416]

"all." It should say "a portion."

PRESIDENT WALLGREN-LINDHOLM: Okay.

THE WITNESS: So that was data that Encana

gave to a company called MGM, which I spoke about

earlier.

CWS-6, Clause 159, there's just some bad

English there. It says "mes" and "me." It should be

"my." Pretty minor.

Thank you very much.

PRESIDENT WALLGREN-LINDHOLM: Thank you very

much. You are now excused, Mr. Einarsson, and you can

take a seat there along family.

THE WITNESS: Thank you very much.

PRESIDENT WALLGREN-LINDHOLM: Thank you.

(Witness steps down.)

PRESIDENT WALLGREN-LINDHOLM: So should we

now proceed to the testimony of Bharat Dixit, or would

you like a quick break before?

MR. LUZ: Perhaps, we just take a quick

break because we're going to have to collect Mr. Dixit

from outside and get him settled and so on, so it will

just be a --

[Page 417]

PRESIDENT WALLGREN-LINDHOLM: Collection

allowed. Thank you.

MR. LUZ: Thank you.

(Brief recess.)

BHARAT DIXIT, RESPONDENT'S WITNESS, CALLED

PRESIDENT WALLGREN-LINDHOLM: Good

afternoon, Mr. Dixit.

(Comments off microphone.)

THE WITNESS: Yes, good afternoon.

(Comments off microphone.)

PRESIDENT WALLGREN-LINDHOLM: Yes,

Mr. Bharat Dixit. Good afternoon. You have been

called to testify in these proceedings by the

Respondent, Canada, and I trust that you know what

these proceedings are about. I will introduce

everybody in a minute.

THE WITNESS: Yes, I do.

PRESIDENT WALLGREN-LINDHOLM: Yes, you do.

And you have given two Witness Statements?

THE WITNESS: Yes, I have.

PRESIDENT WALLGREN-LINDHOLM: Thank you.

And whether or not, Mr. Dixit, you have given

[Page 418]

testimony before, I ask that you address the Tribunal

with any questions or concerns that you may have in

relation to the procedure. If there is something you

do not understand, for example.

THE WITNESS: Certainly. Thank you.

PRESIDENT WALLGREN-LINDHOLM: So let me

introduce the parties first. You will be familiar

with the Counsel for Canada?

THE WITNESS: Yes.

PRESIDENT WALLGREN-LINDHOLM: Yes. And on

the other side are Claimants, the Einarssons and GSI,

and lead Counsel Ms. Lemmens sits the second down the

row, and she's smiling now. And that's her team, and

then the Einarsson family.

To my right is Trey Gowdy who is an

arbitrator from the United States. To my left is Toby

Landau KC from England and Singapore. To my far right

is Geraldine Fischer from ICSID, who is the Tribunal's

Secretary, and the busy lady at the end is the court

reporter, Dawn Larson. Okay?

THE WITNESS: Nice to meet you all. Thank

you.

[Page 419]

PRESIDENT WALLGREN-LINDHOLM: Thank you.

Different from a State court, we do not administer

oath in international arbitration, but I wish to tell

you that you still have an obligation to speak the

truth, and that any failure to speak the truth may

have consequences.

Your testimony may be recorded and

transcribed, so may I ask that you confirm for the

record that you will speak the truth?

THE WITNESS: Yes, I will.

PRESIDENT WALLGREN-LINDHOLM: Thank you.

And before I go any further, my

co-arbitrator or the arbitral secretary reminded me

that I forgot to introduce myself, which I shall do

now.

My name is Carita Wallgren-Lindholm and I'm

presiding in this Arbitration Tribunal. The

Respondent will first conduct a short direct

examination with you, whereafter opposing Counsel will

cross-examine you, and then there might be redirect

and maybe recross.

And I trust that you have access to

[Page 420]

documents?

MS. LEMMENS: He will certainly have access

to all of the documents that we intend to show him

during the cross-examination. And he - we've

confirmed that the mouse and the keyboard function so

that he can scroll through the documents himself as

well.

PRESIDENT WALLGREN-LINDHOLM: And the

scrolling function is there so that you can assess the

full extent of the document and not only the part that

you are asked to examine and have a view on.

THE WITNESS: Understood.

PRESIDENT WALLGREN-LINDHOLM: And then if we

take a break, I will then address the question of

sequestration, and I will revert then at that point if

your testimony will have a break in between.

So do you have any questions before I ask

Respondent to introduce you properly?

THE WITNESS: None at this time.

PRESIDENT WALLGREN-LINDHOLM: Thank you very

much, Mr. Dixit.

Mr. Luz?

[Page 421]

MR. LUZ: Thank you, Madam Chair.

DIRECT EXAMINATION

BY MR. LUZ:

Q. Good afternoon, Mr. Dixit.

A. Good afternoon, Mark.

Q. You filed two Witness Statements in this

Arbitration, the first being January 16, 2023, and the

second being the Rejoinder Witness Statement

November 1, 2024; is that correct?

A. It is dated the 30th of October, but close

enough.

Q. Do you have both of them in front of you?

A. I do.

Q. Great. Before the Counsel for GSI and

Claimants start the cross-examination, could you tell

the Tribunal -- introduce yourself to the Tribunal and

tell them who you are, your background, and your

connection with the National Energy Board, now the

Canada Energy Regulator?

A. Certainly. Where do I begin? I need to

make this brief. I studied, did my graduate and

undergraduate work in Montreal, and I joined the

[Page 422]

National Energy Board in November/

December 1997 -- sorry, 1992, after having worked for

a shipping company and an oil and gas company.

I joined the National Energy Board as a

senior oceanographer and then moved through various

management positions, Director of Regulatory

Development, Human Resources, Audits, and then finally

a team called Exploration and Production which dealt

with regulatory oversight of oil-and-gas exploration

and production activities in what I call "Canada

Lands," lands that the Federal Government has

jurisdiction over.

In 2005, I became the Director of that team.

In those days we used to call ourselves "team

leaders," and I was designated as a Chief Conservation

Officer. The Board, the NEB, delegated to me certain

powers within the Canada Oil and Gas Operations Act

which gave me ability to review -- to receive, to

review, make decisions and do follow up on approved

activities as well as oversight of the Frontier

Information Office, which is a room within the library

of the National Energy Board.

[Page 423]

I became Technical Leader for Exploration

and Production. I'm going to guess probably 2011, and

I continued in that position until I retired in

July 2022. I am now retired and have not had any

dealings with the National Energy Board or now the

Canada Energy Regulator since then.

Is that sufficient or did you want me to

augment anything?

Q. No, I think that was sufficient. Thank you,

Mr. Dixit.

MR. LUZ: I don't have any other questions,

so please go ahead with the cross-examination.

CROSS-EXAMINATION

BY MS. LEMMENS:

Q. Thank you. Good afternoon, sir.

A. Good afternoon.

Q. I understand that you were responsible for

the Frontier Information Office at the NEB and now the

CER; is that right?

A. Correct.

Q. What is the Frontier Information Office, or

the FIO is sometimes the acronym that I see?

[Page 424]

A. Yeah. We are very fond of acronyms

everywhere. The Frontier Information Office is

currently a room within the CER library approximately

25 meters square that houses microfiche and paper

copies of documents received pursuant to

authorizations granted by the CER and, before that,

the NEB, and, before that, the Canada Oil and Gas

Lands Administration and other Regulators. So it's a

room within the library.

Q. Thank you, sir.

And when were you responsible for the FIO?

A. Between 2005 and 2010, if my memory is

correct.

Do you need it more precise or is that

sufficient?

Q. No. I was just trying to understand a

ballpark of the timeframe. Thank you, sir.

A. Yeah. Yeah. I didn't know how precise one

needs to be.

Q. What were your responsibilities with the

FIO?

A. Primarily as oversight to make sure that

[Page 425]

people wishing to access information available in that

facility were satisfied and that information in that

facility was -- that information that had passed the

privilege period as outlined in the Canada Petroleum

Resources Act, Section 101.

Q. And sometimes we refer to that with an

acronym too; right? It's the CPRA?

A. One of my favorite acronyms, and it's not a

radio station in Ottawa.

Q. Sir, did you have input on policies and

practices of the FIO as part of your oversight?

A. Policies to some extent, but practices, yes.

Q. What do you mean "policies to some extent"?

A. The National Energy Board has been

established since 1959, so it has its own rules and

protocols. So what my responsibility was to work

within those as it pertains to information and

documentation that I mentioned earlier provided to us

under the COGOA, the Canada Oil and Gas Operations

Act.

Q. So just to be clear, you had some input on

the policies related to the disclosure of Seismic

[Page 426]

Data?

A. Information on the -- the disclosure of

information on seismic information is provided under

the provisions of the CPRA, Section 101.

Q. Your answer there, sir, are you indicating

that you just followed the legislation and did not

have input?

A. The NEB is an administrator of COGOA and

CPRA, and, as such, we interpret those Acts and -- and

do what is permitted for us to do under those two

Acts. And, in particular, as it pertains to the

disclosure of information, we are bound by the -- that

statute and section.

Q. When you say that you were "interpreting the

Acts," were you part of interpreting the Acts?

A. Not by myself. I mean, clearly, I had

support from our Counsel and practices from the past.

Q. You're not a lawyer, are you?

A. I am not a lawyer.

Q. When you say that --

A. I don't know if that's a good thing or not,

but I'm not a lawyer.

[Page 427]

Q. There's too many lawyers in the room, so

that's probably a good thing.

Sir, so you said that you had assistance

from Counsel. I don't want to know any of the advice,

but I just want to clarify that "Counsel" you mean

legal Counsel, a lawyer?

A. Correct.

Q. And you had some advice with respect to how

to interpret the CPRA and the disclosure of Seismic

Data?

A. I'm sorry. Could you repeat that for me?

Q. You had some advice about how to interpret

Section 101 of the CPRA?

Without telling me what the advice is.

A. Yes.

Q. You held the role of Chief Conservation

Officer under the Canada Oil and Gas Operations Act

until 2009, or COGOA?

A. Yes.

Q. When did you start holding that role?

A. My recollection is from July 1, 2005, till

November/December 2010. Can I refer to my Statements

[Page 428]

to just verify that?

Q. Of course, you can, but I think that it

wasn't clear to me when you started, which is why I'm

asking the question. You can go ahead and look at it,

of course.

A. I just don't want to misstate my tenure.

Q. It's Paragraph 3 where I see you

say: "Until late 2009, I was the designated Chief

Conservation Officer under the COGOA," but I don't

have a start time.

A. Right. I'm wondering whether it's in my

other Statement or not. No, it isn't, and my

recollection is June or July 2005.

Q. In 2009, when you stopped holding that role,

did you transition to a different role, or what

happened there?

A. Yes. I ceased to be the Chief Conservation

Officer but continued to be the Director of the

Exploration Production Team for a short time and after

which I became the Technical Leader for Exploration

Production.

Q. You're talking about a few different roles.

[Page 429]

So you no longer had oversight of the FIO after 2010?

A. Correct.

Q. And you no longer had the Chief Conservation

Officer role under COGOA after 2009?

A. Correct.

Q. So by the time that we got to the Common

Issues Trial in 2015, you did not hold those roles

anymore?

A. Correct. I did not.

Q. You were presented on behalf of the NEB at

the Common Issues Trial; is that right?

A. Yes.

Q. Who was the individual with the oversight of

the FIO at that time?

A. Well, which date please?

Q. In late 2015, during the Common Issues

Trial.

A. I have to reflect back a little bit. Just

bear with me for a second. It was either Kyle Sherwin

or Patrick Smythe. I'm not 100 percent sure as to who

was the Director of the Team at that time.

Q. Neither of them was presented in the Common

[Page 430]

Issues Trial as a witness on behalf of the NEB; isn't

that right?

A. I don't know. I certainly was presented as

one.

Q. Are you aware of any other witnesses from

the NEB being presented at the Common Issues Trial?

A. I don't recall.

Q. So the Chief Conservation Officer under the

COGOA, what is that role?

A. There are two -- well, I guess there is the

statutory definitions of what the responsibilities of

the Chief Conservation Officer are, and they are

spelled out in the COGOA. I don't recall what

section. I can look it up, if that's necessary.

Now I forgot the rest of your question.

Q. I was just asking what your role was as

Chief Conservation Officer under COGOA.

A. As -- the principle part was to make

regulatory decisions on applications that came before

the Board. COGOA applications that came before the

Board.

Q. You reviewed and approved applications for

[Page 431]

oil-and-gas exploration work, including authorizations

for geophysical operations?

A. That is correct. That's one of the works

that I had the power delegated to me.

Q. And for many people in the room that aren't

in the Seismic Data industry, are we to understand

that those are permits or authorizations for

conducting seismic surveys in the offshore areas or

the Frontier areas of Canada?

A. Yes. COGOA says that, amongst other things,

that, in order to do any oil-and-gas-related work or

activity, they need an operating license and they need

an authorization. To do geophysical work, they need a

geophysical operations authorization.

Q. You were in charge of reviewing and

approving those applications under COGOA until 2009?

A. Yes, during my tenure, yes.

Q. COGOA is a separate statute from the CPRA;

correct?

A. They are two companion regulations -- Acts,

yes.

Q. Did you also hold the title of Chief Safety

[Page 432]

Officer under COGOA?

A. I did not.

Q. You understand that there is a Chief Safety

Officer under COGOA?

A. I am aware of that, yes.

Q. The purpose of COGOA is safety, protection

of the environment, accountability in accordance with

the "polluter pays" principle.

Do you understand that?

A. Yes, and conservation of resources.

Q. That is the Act under which the geophysical

operations permits are made?

A. That is the Act under which authorizations

for geophysical activities are given, yes.

Q. Not the CPRA?

A. CPRA addresses a different aspect of the

related oil-and-gas activities in Canada lands.

They're companion regulations -- Acts.

Q. But you understand that the geophysical

permits are granted under COGOA and not CPRA; correct?

A. I am aware of that, yes.

Q. You're retired now; right?

[Page 433]

A. Yes.

Q. You retired in 2022?

A. Yes.

Q. Prior to your retirement in 2022, you had a

long career in oil-and-gas exploration and production

in Canada. Is that a fair statement?

A. Yes.

Q. Did you interpret Seismic Data over the

years?

A. I did not.

Q. Would you agree with me that Seismic Data is

a critical component of exploration for hydrocarbons?

A. It is.

Q. Seismic data is treated by both the seismic

companies and oil-and-gas companies as a valuable

commodity in the oil-and-gas industry?

A. I accept what you say.

Q. Were you ever involved in creating Seismic

Data?

A. No.

Q. Do you know what is involved in creating

Seismic Data?

[Page 434]

A. Somewhat. Not details, but an overview,

yes.

Q. Would you agree with me that Seismic Data

takes significant time to create?

A. Yes. It takes time to undertake an

operation, yes. It depends on the scale and the

nature of the work.

Q. And do you understand that Seismic Data can

be reprocessed into different versions of the same

seismic survey?

A. I'm not conversant with those activities.

Q. Sorry. Do you not understand what I'm

saying?

A. No. I said I don't know what's involved in

processing of seismic information.

Q. Okay. So when I talk about reprocessing,

you don't know what I mean?

A. No. I've never done that myself, and I have

no involvement in it.

Q. And just so I understand, you do have a

Ph.D. in physics; correct?

A. Yes, I do.

[Page 435]

Q. Did you study in the geophysical area?

A. My postgraduate work was in physical

oceanography, so physical, yes. But seismic, no.

Q. Okay. You had previously worked in the

industry before joining the NEB; correct?

A. By "industry," you mean an oil-and-gas

company, or just anything other than government?

Q. Fair enough.

Anything other than government, but I think

you were involved in the oil-and-gas industry before

you were at the NEB in 1992.

A. Yes. I worked for an oil-and-gas

exploration and production company, and then I

provided contractual services to the same industry.

Q. Were you ever involved in licensing Seismic

Data in any of your roles before you joined the

government?

A. No. The licensing is done by the Regulator,

not by an operator.

Q. When I refer to "licensing" in that

question, what I'm asking you is, did you ever license

Seismic Data from a seismic company?

[Page 436]

A. The company I did work for may have. I

certainly didn't.

Q. Okay. I wasn't referring to permits, just

so I make myself clear.

A. I think you -- were you referring to making

applications?

Q. No. I'm referring to licensing. So you

know how you license a piece of software, like

Microsoft Word on your computer?

Do you understand what I'm saying?

A. Yes. Yes.

Q. Were you involved in licensing of Seismic

Data before you entered your roles with the government

in 1992?

A. I did not.

Q. Okay. Do you know anything about licensing

Seismic Data?

A. I do not.

Q. Sir, after you exited your university years,

you worked at a shipping company after the Bedford

Institute; is that right?

A. Bedford Institute of Oceanography, yes.

[Page 437]

Q. Okay. And so the Bedford Institute is an

institute that is operated by the Canadian Government?

A. Correct. And I think the Department of

Fisheries and Oceans.

Q. And also Natural Resources Canada; correct?

A. I don't know. I think Bedford was a part of

DFO -- sorry, Fisheries and Oceans. I don't recall

what role National Resources Canada may have had at

the Bedford. I certainly didn't have any involvement

with that aspect.

Q. At your time at the Bedford Institute, it

was just related to oceanography then?

A. Yes. It was a cruise in the Gulf of St.

Lawrence -- a boat transit.

Q. I don't know if you're saying "crews," as in

c-r-e-w-s or c-r-u-i-s-e.

A. The latter. It's the -- I don't know what

else to call it. Maybe a mission or experiment.

Q. Thank you, sir.

When you were working at the shipping

company after the Bedford Institute, you worked for

that company and it was in a consortium with two major

[Page 438]

oil-and-gas exploration companies?

A. Correct.

Q. Who were those companies?

A. One of them was Petro-Canada at that time,

and the other one was Dome Petroleum.

Q. So Petro-Canada is now Suncor; is that

right?

A. That is correct.

Q. And -- sorry, what was the second one?

A. Dome Petroleum, which is, I think, now part

of BP.

Q. And then after that, you joined a major

oil-and-gas company exploring and producing oil and

gas in the Canadian Beaufort Sea; is that right?

A. Yes.

Q. Is there any reason why you didn't mention

the names of the companies in your Witness Statement?

A. I didn't think it was germane.

Q. What company was it?

A. Gulf.

Q. And what company is that now?

A. I don't know. I'm tempted to say

[Page 439]

ConocoPhillips, but I don't know for sure.

Q. You're aware that GSI has been in litigation

with the companies that you have just mentioned?

A. I do not recall.

Q. Did you do geophysical work for that

company, Gulf?

A. I have not done any geophysical work.

Q. Okay. Did you ever come across GSI Seismic

Data in your work in the Beaufort Sea?

A. I did not.

Q. Were you aware that GSI had Seismic Data in

the Beaufort Sea?

A. I did not know that.

Q. Were you aware that GSI was an active

seismic company in the Beaufort Sea?

A. I learned that whilst I was with the NEB,

not before.

Q. When did you learn that?

A. During my tenure as the team leader for

Exploration Production Team.

Q. You also had a consulting company that

provided services to the oil-and-gas industry

[Page 440]

including drilling contractors exploring for oil and

gas in the Beaufort Sea from 1986-1992; is that right?

A. Correct.

Q. What companies did you work for during that

consulting period that you had for six years?

A. Primarily a company called BeauDril, which

is a drilling contractor, and Amoco, which is an

oil-and-gas company in the U.S. Beaufort Sea.

Q. Okay. So just mainly those two?

A. Yes.

Q. Okay. Did you visit the FIO as part of your

work before you actually worked at the NEB?

A. No, I did not.

Q. When did you start to become familiar with

the FIO?

A. Probably in the 2004-2005 timeframe is when

I first became aware of what the FIO was.

Q. So you were not aware of any parties

accessing the FIO then before that either, if you

hadn't heard of it?

A. No. Yes, I didn't know who was accessing

the FIO prior to that. No, I did not.

[Page 441]

Q. Did you know if there was such a thing as accessing the FIO before you had heard of the FIO?

A. No.

Q. Do you know what vectorizing or re-vectorizing Seismic Data means?

A. No, I do not.

Q. Do you know that Seismic Data is typically loaded into a specialized workstation in order to be able to use it?

A. I know that now.

Q. When did you learn that?

A. I would say in the 2000s, maybe 2005, '06 timeframe.

Q. Okay. So when you became responsible for the FIO?

A. Yes.

Q. In the course of that work, you started to learn about vectorizing and workstations; or you don't know about vectorizing still?

A. I still don't know anything. And the nature of my work and my studies didn't go into geophysical work. So I had no reason, besides curiosity, but

[Page 442]

whilst I became the Director of the team and the Chief Conservation Officer, I was more conscious of what these things were.

Q. The workstations?

A. The responsibilities under COGOA and CPRA, yes.

Q. Sorry. You became more aware of responsibilities under COGOA and CPRA. Does that mean that you understood vectorizing or workstations?

A. No. Just to be clear, I didn't understand it then. I don't understand it now.

Q. Okay. So what exactly were you becoming more clear on when you were operating under COGOA and CPRA then?

A. What the Acts allowed, didn't allow, what activities they authorized, that kind of stuff.

Q. But you didn't necessarily educate yourself about what the seismic industry was doing outside of those Acts?

A. I did not. We had geologists and geophysicists as part of the team, and it was their domain. I didn't need to learn everything about

[Page 443]

everything that was within the ambit of my team.

Q. Sir, do you know why the FIO makes Seismic Data available?

A. My understanding is that the government is interested in putting information, making information available, so parties who are interested in exploring and production of hydrocarbons, oil and gas, can have a better understanding of where it is they will be planning and conducting activities.

Q. Those activities that they would be conducting are exploring for oil and gas offshore?

A. And onshore, yes.

Q. In this particular case, I think we are talking about offshore, but that's okay. I understand.

A. It is not clear to me because both the Acts that I mentioned before apply to both on and offshore areas.

Q. Sir, do you understand that that was part of the Canadian Government's attempt to promote offshore oil-and-gas development?

A. I wouldn't know. As part of the staff of

[Page 444]

the National Energy Board and subsequently the CER, our role was to administer those two Acts. We were not in promoting any activities.

Q. You're aware that the Canadian Government has collected billions in royalties off of the offshore oil-and-gas production?

A. I'm not sure that is correct. They may have obtained monies from production of the provinces in the eastern part of Canada. I don't have any dealings with them. In the areas where the NEB has had jurisdiction, except for one extended flow test, there has been no offshore oil-and-gas production.

Q. We'll come back to the Arctic moratorium in a moment, sir.

A. Certainly.

Q. So before there was the NEB -- Well, now we have the CER, and before that was the NEB, and before that was the Canada Oil and Gas Land Administration. Do you recall that?

A. Yes, I do. And for those who are fond of acronyms, they are affectionately called COGLA.

Q. Right, sir. I have that in any notes too.

[Page 445]

But you were not at COGLA?

A. That's correct.

Q. So COGLA administered geophysical operations in Canada from 1981 to 1991; is that right?

A. That is correct.

Q. Who regulated geophysical operations before 1981?

A. In areas north of an administrative line, principally the 60th degree latitude, it was, I think at that time Department of Indian Affairs and Northern Development, INAC, or words to that effect. And south of that was Natural Resources Canada, I think. That's my understanding.

Q. It wasn't necessarily done by a board of the government. It seemed to be done by departments or ministries directly; isn't that right?

A. Yes.

Q. Sir, you reference at -- in your First Witness Statement, sir, Paragraph 20. So that's RWS-01 at Paragraph 20. You reference some correspondence between Delaware, or "Old GSI," I think, as you call it, and the Minister of Energy,

[Page 446]

Mines and Resources, Marcel Masse in 1987.

Do you see that?

A. Yes, I do.

Q. So just to be clear, you did not work for the Government of Canada in 1987?

A. I did not. I did not start working for the Government of Canada, the National Energy Board, until 1992.

Q. Right. So you weren't actually part of this correspondence; correct?

A. Correct.

Q. You just simply provided your own observations about it?

A. Just give me a second. In Paragraph 20 of my First Statement RWS-01, I make reference to it, the communications between Minister Masse and Mr. Clink of GSI.

Q. Right. And it's a description that you made about that correspondence. But the correspondence speaks for itself; doesn't it?

A. Yes, it does.

Q. Sir, when there was the change from COGLA to

[Page 447]

the NEB, did the NEB simply take over everything that the Frontier Information Office had from COGLA and put it in the NEB office?

How did that work?

A. I don't know the mechanics because I was not part of the Crown at that time. My understanding is that when Parliament dissolved COGLA, staff went either to the Department of Indian and Northern Affairs -- whatever it was called -- INAC, and Department of Natural Resources and to the National Energy Board. They went to three different places. Individuals may have done individual career moves, but, generally, that's how staff was distributed.

And the content of information and documentation was sent to the National Energy Board for areas for which the Board had jurisdiction.

Q. And so the data that COGLA had, it included data with respect to offshore Nova Scotia and offshore Newfoundland before the Boards were created for those jurisdictions; isn't that right?

A. My recollection is that COGLA was dissolved in 1991. And I'm going by memory, so just bear with

[Page 448]

me.

The Canada-Newfoundland and Labrador Offshore Petroleum Board -- at that time, of course, it didn't have the word "Labrador" in it, was in 1985.

And the Canada-Nova Scotia Offshore Petroleum Board, I'm going to say 1990, but I'm not 100 percent sure of that.

Q. You are correct. It is 1990 for C-NSOPB. The C-NOPB was established in 1986.

A. Off by a year.

Q. There you go. But the Seismic Data that the NEB had while you were there, it included data over the jurisdictions of Nova Scotia and offshore as well -- sorry, Newfoundland, as well; correct?

A. There was information from COGOA-related activities for those two offshore areas, yes, and -- I just want to make sure that people understand or are mindful that it is the Canada-Newfoundland and Labrador Offshore Petroleum Board. It's a joint board. It's not Newfoundland and Labrador Offshore Petroleum Board. It's not Nova Scotia offshore Petroleum Board. It's Canada-Nova Scotia. So Canada

[Page 449]

is part of it and the federal copies of those were in the NEB's possession. They were not in the FIO.

Q. Sorry. What do you mean that they were not in the FIO? There is Seismic Data elsewhere in the NEB?

A. My recollection is at the time of dissolution of COGLA, the C-NLOPB, the Canada-Newfoundland Labrador Offshore Petroleum Board, wished any of their data to be accessed through their own offices. And, as such, we packed them up and put them in storage. They were put in storage. I didn't do it because it was done before my tenure, yeah.

Q. So the C-NOPB gets established in 1986, and they want to have copies of the Seismic Data relating to their jurisdiction; right?

A. I'm sorry. Repeat that for me, please.

Q. The C-NOPB gets established in 1986, and that Board wants to have copies of the Seismic Data over its own area in Newfoundland?

A. Okay.

Q. Is that right?

A. I don't know. I'm sure they wanted it, yes.

[Page 450]

I don't know.

Q. You don't know whether they got copies of the data from --

A. I believe they did because they have offices through which information can be accessed in St. John's.

Q. Right. So the data wasn't put in storage?

A. No. Go ahead. I'm sorry. Please, go ahead.

Q. So the data was not put in storage; right?

A. The data from the Newfoundland offshore area that the NEB received was put in storage. The data that was received by the C-NOPB at that time, they did whatever it is that they did with it.

Q. How did they get it?

A. From transfer from COGLA to the C-NOPB.

Q. So the legislation that created the C-NOPB came around just before 1986 when the C-NOPB was established; right?

A. Yes. Yeah.

Q. So all the Seismic Data relating to Newfoundland and Labrador that predates 1986 goes to

[Page 451]

the C-NOPB; is that right?

A. Offshore information. The onshore part, if there was any, that would be in the Newfoundland Department of Energy, or whatever the equivalent is.

Q. So you would agree with me that COGLA transferred control of the Seismic Data records relating to offshore Newfoundland to the C-NOPB sometime around 1986 when it is established?

A. I believe that to be correct, although I don't have any personal knowledge about what was transferred and what was not.

Q. And you don't have any information that Delaware GSI was asked for permission for its Seismic Data to be transferred to a different government agency that involved a different province?

A. I'm not aware of any of that.

Q. Let's talk about the C-NSOPB because it was established in 1990, but I think it is quite similar in the sense that COGLA's Seismic Data relating to offshore Nova Scotia was transferred to the C-NSOPB sometime around the time that C-NSOPB was established in 1990; is that right?

[Page 452]

A. Sounds right.

Q. And all the Seismic Data that was transferred was from a prior time from 1990, so it would have been created in the 1970s, the 1980s, and then all of that gets transferred over to the C-NSOPB; is that right?

A. That sounds right.

Q. And you're not aware of Delaware GSI being asked for permission for its Seismic Data to be administered under a different board?

A. I'm not understanding the question. And by extension, the previous one that related to the Newfoundland.

So just clarify that for me, please. What is it that you're asking so I can be as responsive as I can.

Q. Well, as you said, the C-NLOPB and the C-NSOPB are joint regulatory boards between the Government of Canada and those two provinces; is that right?

A. Correct.

Q. And so, previously the provinces were not

[Page 453]

part of the COGLA administration; correct?

A. Yes.

Q. So now we have two boards getting Seismic Data that was already created, the C-NLOPB and the C-NSOPB get that Seismic Data and they can do whatever they want in their own regulation of that Seismic Data; is that right?

A. I don't think that that's correct. They are equally bound by their statutes, the enabling statutes, the Accord Implementation Acts, as the NEB is with COGOA and CPRA. And -- yeah. So in terms of requiring information, in terms of keeping information and in terms of disclosing information, there are constraints of -- on when they can do that.

Q. But those are --

A. They can't do whatever they want whenever they want.

Q. But those are different acts than the CPRA; correct?

A. They are independent acts, and there are mirror federal provincial acts in the provinces in which these offshore areas are, but they mirror COGOA

[Page 454]

and CPRA.

Q. Sir, I don't think that is correct.

You're aware that there are Accord Acts at the Federal Canada level and Accord Acts at the provincial level, and they are not the CPRA; right?

A. They don't -- they are not copies of CPRA. They bring together elements of COGOA and CPRA in the Accord Implementation Acts. But they are -- yeah, the COGOA is the cede act.

Q. And so, you would agree with me, I think, that that mirror legislation did not come into effect until shortly before 1986 with respect to the C-NLOPB and 1990 with respect to C-NSOPB; isn't that right?

A. That's right. Sounds right.

Q. And those acts are not the CPRA?

A. No. They are not. They are different acts.

Q. So we now have Seismic Data that is created before the time that those boards existed being administered under different government boards with different provinces now involved under different acts; is that right?

A. Okay. I'm not sure where that is leading,

[Page 455]

but, yes.

Q. Thank you.

In your Witness Statement, your first one, you had referred to a 1984 COGLA publication, "catalog" is what you called it -- regarding released geophysical reports.

Do you recall that?

A. Yes.

Q. That catalog is not a legal document, it's not a statute or a regulation; right?

A. It's an informational document.

Q. Right. And I think when you say it's an informational document, you would agree with me that it's not a statute or a regulation here in Canada?

A. My interpretation of what statutes are, are acts passed by Parliament and regulations are subsidiary to acts.

Q. But do you understand that the catalog is not a law in Canada?

A. Yes. It's not a law.

Q. Thank you.

A. Only acts and regulations are laws.

[Page 456]

Q. Good. Close to being a lawyer.

So did you review the 1984 catalog to see if it ever mentions copyright?

A. I don't recall paying particular attention and seeking out the word "copyright" in that publication.

Q. I think we can pull it up here for you. And here we're looking at R-283. No, I don't think this is it. Sorry. My apologies. It is going to be R-226. Thanks.

Sir, you recall this is the catalog?

A. Yes. Oh, sorry. Yes.

Q. Now, you weren't at COGLA, so you were not part of the creation of this catalog; right?

A. Correct.

Q. So it's a bit of a lengthier document, but --

A. Yes, go ahead.

Q. -- it's a searchable document, I -- as I understand it.

Have you ever checked it for copyright? You said no.

[Page 457]

Would you like to see if it refers to "copyright" at all?

A. Certainly. Go ahead.

Q. Do you want us to perform that task for you?

A. You're probably more proficient than I am.

Q. Only if we spell "copyright" correctly.

And, sir, you see that there is no matches being found on that document for the word "copyright"?

A. Yes.

Q. And did you ever search this catalog document, sir, for reference to the Berne Convention?

A. I did not.

Q. Do you know what the Berne Convention is?

A. I do not.

Would you tell me?

Q. I can tell you certainly, although that's a little unconventional for cross-examination. The Berne Convention is --

A. I would like -- there is some reason why you brought it up, so I would like to understand where I can be helpful and be responsive.

Q. Thank you, Mr. Dixit.

[Page 458]

Just quickly, the Berne Convention is the international convention for the protection of copyright.

A. All right. Thank you.

Q. And, sir, you don't have any information that GSI was -- or Delaware GSI at the time in 1984 was provided a copy of this catalog? Is that fair?

A. I do not know if they were sent a copy of that directly. It was publicly available at COGLA's offices.

Q. Right. So it sat at COGLA's office, and some iteration of it later sat at NEB's office; is that right?

A. I'm not sure I understand the word "iteration." It is probably the same document that sat in the FIO.

Q. When it became the NEB?

A. I think NEB issued its own versions. We didn't do anything to the COGLA version.

Q. It wasn't a catalog that was mailed out to everyone in the industry; isn't that right?

A. I do not know that. It may have been. I

[Page 459]

wasn't part of that aspect, but it was in our library, and it's publicly accessible.

Q. Do you have any records to indicate that GSI Delaware's Seismic Data was being accessed from the FIO in 1984?

A. I'm sorry. Repeat that for me, please.

Q. Do you have any records to show that Delaware GSI's Seismic Data was being accessed from the FIO in 1984?

A. In 1984? I don't know what was accessed in 1984.

Q. So you don't have any records to that effect?

A. I don't.

Q. When you worked at the NEB, did you have any records, or is this an issue of your retirement or --

A. No. I'm just saying that I didn't know what was going on in 1984 in COGLA. I wasn't part of COGLA.

Q. And the NEB didn't inherent any records that indicated that GSI Delaware's data was being accessed through the 1980s?

[Page 460]

A. They may have. I'm not recalling what may have been received from COGLA.

Q. You didn't see any such records; isn't that right?

A. I didn't see it. No. I didn't look for it. I didn't see it.

Q. And so, when the data was transferred from COGLA to the C-NLOPB and C-NSOPB for those jurisdictions, sir, did COGLA then retain a copy of that same data?

A. COGLA ceased to be in 1991, so there is nothing -- nobody there to retain anything.

Q. I understand that, but COGLA obviously existed at the time that the transfer of the Seismic Data went to those boards, and I'm asking whether COGLA continued to hold the same records, which you worked at the NEB, and you would have seen what was inherited from COGLA at the NEB when you started working there in 1992?

A. COGLA transferred to the NEB federal copies those records. I didn't look for every document that was received from COGLA.

[Page 461]

Q. So does the NEB or the CER continue to maintain offshore Newfoundland and Nova Scotia Seismic Data?

A. I do not know.

PRESIDENT WALLGREN-LINDHOLM: Ms. Lemmens, I'm sorry. We would need to break in five minutes for the court reporter, so when you come to a suitable instance, may I ask you to take a break. Okay. Thank you.

MS. LEMMENS: Thank you.

BY MS. LEMMENS:

Q. And, sir, as you said, you were no at COGLA when it dissolved; right?

A. Correct.

Q. And so you don't have any information that any of the seismic companies that created that Seismic Data consented to any transfer of their data to those other boards?

A. I simply don't know.

Q. Thank you.

MS. LEMMENS: This would be an okay time to break. Thank you, Madam Chair.

[Page 462]

PRESIDENT WALLGREN-LINDHOLM: Thank you, Ms. Lemmens.

Mr. Dixit, we will now break for 15 minutes, and I remind you that you are sequestered. Do you know what that means?

THE WITNESS: I do.

PRESIDENT WALLGREN-LINDHOLM: Yes. So you should not speak to anybody about your Witness Statement or your testimony and not liaise with Counsel, please.

THE WITNESS: Understood.

PRESIDENT WALLGREN-LINDHOLM: Thank you. And 15 minutes, which means that we will be back 5 past 4:00.

THE WITNESS: Understood.

PRESIDENT WALLGREN-LINDHOLM: Thank you.

(Brief recess.)

PRESIDENT WALLGREN-LINDHOLM: So are we ready to continue cross-examination? Ms. Lemmens? You are ready?

MS. LEMMENS: Yes, of course. Thank you, Madam Chair.

[Page 463]

PRESIDENT WALLGREN-LINDHOLM: Thank you.

BY MS. LEMMENS:

Q. Mr. Dixit, before the break, I think you had indicated that you had a limited knowledge of copyright, but can I confirm that?

A. Yes.

Q. And so, I just want to run through a few questions for you.

Do you know how the Copyright Act works?

A. I do not.

Q. Did you know that Seismic Data is copyright before the Common Issues Trial Decision?

A. I don't recall.

Q. You don't recall whether you knew that Seismic Data was copyright or not?

A. Before the Common Trial?

Q. Yes.

A. I did not know that.

Q. You did not know that it was copyright?

A. Yes.

Q. And so therefore you also did not know whether copying of Seismic Data was allowed under the

[Page 464]

Copyright Act or not?

A. Would you repeat that for me, please?

Q. Therefore, you also did not know whether copying was allowed under the Copyright Act?

A. I'm not a lawyer, so I can't speak to copyrights and what it entails and what it doesn't entail. What I can speak about is practices that we undertook in the Frontier Information Office.

Q. And those practices included using signage posted at the Frontier Information Office regarding intellectual property laws in Canada; is that right?

A. There were signages, yes.

Q. Were those signs used because it was unknown whether Seismic Data was covered by intellectual property protections?

A. It was done with abundance of caution. It was done because copyrighted-related issues were being brought up circa 2000.

Q. Is that the whole of your answer?

A. I'm not sure whether there is more.

Q. Okay. So you say it was out of an "abundance of caution." So did the NEB know whether

[Page 465]

copyright existed in Seismic Data before the Common Issues Trial Decision?

A. If I recall the signs, it says "may contain" copyright information, and to -- as I said, for the case of abundance of caution, we put up a sign saying that people need to be aware that there may be copyright materials in the FIO.

Q. And the "may be" copyright materials is because it was unknown; isn't that right?

A. Our interpretation was that under the CPRA, Section 101, information that was provided to the Board could be disclosed -- is to be disclosed following the expiry of the privilege period. So we made that information available, and we put in that sign as a cautionary step.

Q. When you say "caution," what was the caution about?

A. It may contain copyright material like any library contains information that could be copyrighted.

Q. In other words, it was unknown by the FIO whether Seismic Data was copyright or not; isn't that

[Page 466]

right?

A. No. I don't think so. My interpretation is CPRA required the Regulator to make information available after the expiry of the privilege period as stated in CPRA 101.

Q. When you say "available," are you saying copying?

A. "Available" means "there."

Q. "There."

A. In the FIO for people to read, review, take away, make copies in the FIO of material that is there. It is disclosed.

Q. Are you aware that -- have you read the Common Issues Decision from Justice Eidsvik?

A. I may have read parts of it. I didn't read it all, and even if I read it all, I don't have sharp recollection of what the salient points were.

Q. So you participated in the Common Issues Trial, but you didn't read the Decision?

A. I didn't say that. I said I don't recall what it had said when the thing came out. I think it's about 10 years ago.

[Page 467]

Q. It was almost 10 years ago.

A. Yeah.

Q. Sir, do you know that the Common Issues Decision determined that copyright can subsist in Seismic Data?

A. Now that you mention it, that is -- yeah, I recall reading that.

Q. And so, the signage that went up indicating that there was potentially copyright in the Seismic Data, you say that that was cautionary, but if you didn't think that copyright subsisted in Seismic Data, why was there a need for the signage at all?

A. The FIO contains information. I haven't gone through it all, and I don't know what, if any, copyright material may be there. We did that as -- with abundance of caution, and we put in the word "may," which means that, you know, it could or it could not.

Q. Sir, I'd like to show you an exhibit. It is Exhibit C-549.

A. Can I blow it up?

Q. It should come up on your screen.

[Page 468]

A. I can but I have to squint.

(Comments off microphone.)

Q. Oh, you are also welcome to Zoom in. You'd need to use the plus sign at the top of the PDF reader there.

Sir, this is a National Energy Board sign that is located in the FIO.

Are you familiar with this signage?

A. Yes, I am.

Q. And it says that: "The Frontier Information Office Library contains material that may be subject to copyright owned by" -- now I can't read it because it is too zoomed in -- "owned by those providing the material. The Copyright Law of Canada governs the making of photocopies or other reproductions of copyright material. Copying may be an infringement of the Copyright Law. The Frontier Information Office is not responsible for, nor does it authorize either implicitly or explicitly any infringement of this law."

Do you see that?

A. Yes, I do.

[Page 469]

Q. And you're familiar --

A. I'm sorry. I do.

Q. And you're familiar with this signage, sir?

A. Yes, I am.

Q. And so why was the sign up if you didn't think that Seismic Data was copyright?

A. I'm not sure what more I can say. We did that with abundance of caution, and it says -- it says it "may" contain. So we did that with that in mind.

Q. Well, "may" in this case would indicate that it was unknown whether copyright subsisted in the material; isn't that right?

A. No. It says that we haven't gone through the material to ascertain what is and what may not be copyright.

Q. Did you ever undergo that process?

A. I don't remember.

Q. What would that process entail, in your mind?

A. Perhaps going through every document to see what, if any, copyright material was there.

Q. How would you determine whether it was

[Page 470]

copyright or not?

A. I don't know. Somebody would have to guide me in that.

Q. Sir, I'd like to show you another exhibit. It is C-552.

A. All right.

Q. Do you see a photo your screen?

A. I do.

Q. Is this familiar to you, this space in the photo?

A. It is.

Q. This is the FIO, isn't it?

A. It is.

Q. And so what are we looking at here in the photo?

A. It's shelving containing microfiche.

Q. And that microfiche is Seismic Data; is that right?

A. It could be. Or rephrase that -- it may be.

Q. What else is in there?

A. It's whatever information that has passed privilege that was submitted to the Regulator under

[Page 471]

COGOA.

Q. And so, is there anything else that was submitted that you think was covered by copyright?

A. I don't know.

Q. So what process would you undertake to determine whether these records here are copyright or not?

A. I don't know. I've not gone through the exercise, so I don't know.

Q. I'd like to show you another exhibit, sir. It's Exhibit C-548.

And this one is a little bit harder to read from this photo. I think the integrity of the photo may have been a little bit compromised when we turned it into a PDF. But are you familiar with this document, sir?

A. Yes, I am.

Q. We're looking at the Frontier Information Office log in which a party can come into the FIO and indicate that they had come in and looked at materials; is that right?

A. Correct.

[Page 472]

Q. And at the bottom of the document -- sorry. Scratch that.

There's a series of these forms on this clipboard with this pen available at the FIO; correct?

A. Yes.

Q. On this document, near the bottom, it indicates that: "The Frontier Information Office Library contains material that may be subject to copyright owned by those providing the material. The Copyright Law of Canada governs the making of photocopies or other reproductions of copyrighted material. Copying may be an infringement of the Copyright Law. The Frontier Information Office is not responsible for any infringement of this law made by the users of these machines."

Do you see that?

A. Yes.

Q. And the machines that are being referred to there are a scanner, a photocopier, and a computer that has internet access; is that right?

A. My recollection is that there's a microfiche reader and a computer. I don't recall a scanner.

[Page 473]

There may be, but I don't recall one.

Q. Okay. And so these forms were used by users of the FIO coming to look at materials, and they required the signatures of those users on the form.

Do you see that at the top?

A. Yes, I do.

Q. Why did the FIO require a signature from the users of the FIO to agree to this statement?

A. With abundance of caution.

Q. And so, it was collecting signatures of users of the material to have them agree that copyright may subsist in this data and that the Frontier Information Office is not responsible for any infringement of the copyright laws made by them; is that right?

A. In addition to signatures, not just signature by itself. It has who is it that is accessing, and this is a way of us being aware of who comes in, who books time and uses the FIO.

Q. But you would agree with me the FIO does not actually track all the users of the FIO materials; isn't that right?

[Page 474]

A. In order to access the FIO, one needs to make an appointment, and an appointment is given only to one user at a time, and this is the document they sign and identify themselves when they are using the FIO.

Q. Sorry. My question was a little bit different than that.

The FIO does not track all of the users that come in to the FIO and what they actually look at in the FIO; isn't that right?

A. That is correct. We don't know what they look at. They book a time in the room, and they can access what they wish. We don't look over their shoulder. We don't ask them to provide a list of everything that they have looked at.

Q. Sir, I understand that you're retired, but do you know that the FIO maintains this liability agreement and this signage even today?

A. I don't know. I was in -- full disclosure, I was in the library today actually to access another part of the NEB for a completely different matter. I didn't go into the FIO so I don't know whether it's

[Page 475]

there or not.

Q. Up until the time that you retired, the signage and the liability agreement was maintained at the FIO?

A. That's my understanding, yes.

Q. Did the wording of the signage and these liability agreements change over time?

A. Somewhat, yes.

Q. Did they change because the NEB and the CER simply wanted to be seen as not taking a position about whether copyright applied to the materials or not?

A. It was because of increased interest in copyright matters circa 2000, I think, if I remember correctly, with abundance of caution, and we did not take a position on copyright.

Q. Sorry. Could you just say that a little bit louder or did you catch that? Thank you.

THE WITNESS: We're good?

REALTIME STENOGRAPHER: Yes, sir. Thank you.

THE WITNESS: Thank you.

[Page 476]

BY MS. LEMMENS:

Q. So when the FIO does not keep a record of what a user is looking at in the FIO, it doesn't know how many times a seismic survey is accessed by users in the FIO; isn't that right?

A. Correct.

Q. And the FIO also does not know how many times a seismic survey in the FIO might be copied?

A. By "copied," I'm interpreting means printed off the fiche or from a CD; is that correct, or not?

Q. Yep. Yeah. Just another copy of it.

A. We don't keep track of what is copied.

Q. And so you don't know how many times a seismic survey is copied then; correct?

A. Correct. Or what information is copied. It's not just seismic information that's in the FIO. It has other information that is submitted to the Regulator pursuant to COGOA.

Q. Sir, did you say that there was a computer in the FIO?

A. I believe it's a standalone computer, yes.

Q. And it has access to the internet?

[Page 477]

A. I don't believe so. That's what I meant by "standalone." It's not connected to any network.

Q. When was the computer installed in the FIO?

A. I don't remember. I'm going to guess that it was circa 2005, 2008 timeframe.

Q. And that's because obviously technology had changed over time.

A. It was getting increasingly difficult for us to maintain the fiche reader. Servicing was hard, parts were hard. And in 2008, we started asking people to submit copies to us in CDs instead of paper and Mylar and stuff like that.

Q. Sir, I just wanted to show you another exhibit here. It's C-550.

Does this look familiar to you?

A. It does.

Q. Okay. And so is this a picture in the FIO then?

A. It is.

Q. Okay. And we're looking at a microfiche reader and a printer?

A. Correct. And a desk and a chair.

[Page 478]

Q. Thank you.

A. And somebody's purse.

Q. Thank you. Mine.

Anyway, so I just wanted to clarify that there is, in fact, a printer in there that users can use to print off some of the materials and make copies?

A. I believe I said that before, yes. There is a printer and there is documentation to that effect.

Q. So when the FIO does not inquire about what people are looking at in the FIO, then I take it also that the FIO does not inquire as to the purpose of anyone visiting the FIO; is that right?

A. That is correct.

Q. The main purpose is to determine whether areas in the offshore or the Frontier areas of Canada have resource-development potential; is that fair?

A. It is a purpose. A variety of people access -- can access the FIO, have accessed the FIO. Many people are in the oil-and-gas business, so they probably are looking for that, but it's not necessarily the only reason that they come there.

[Page 479]

Q. And so, in other words, it doesn't have to be about promoting the offshore oil-and-gas development in Canada; is that right?

A. The NEB does not promote oil-and-gas development.

Q. You're aware that the CPRA's purpose is to promote offshore oil-and-gas development in Canada?

A. The NEB does not promote. It is a Regulator. It authorizes and makes sure that there's compliance with the acts and regulations and authorization conditions.

Q. My question was a little bit different, though, sir. On the second time around it was, do you know that the CPRA, the purpose of that Act is to promote offshore oil-and-gas development?

A. I'll have to look at the Act to affirm that.

Q. You would agree with me, sir, that the NEB had no control over what third parties were doing with the borrowed seismic materials when they took them out of the FIO; right?

A. Yes.

Q. That includes that the NEB does not control

[Page 480]

any third parties creating SEG-Y format Seismic Data from any revectorization of the data available at the NEB?

A. We don't know what they're doing, so they could be doing whatever it is that you said they might be doing.

Q. Right. And you don't know what "revectorization" is?

A. No, I do not.

Q. Do you know what SEG-Y is?

A. It's a standard. I don't know much more beyond that.

Q. A standard format of Seismic Data? Is that what you're trying to say?

A. A data format. I don't know whether it's specific to seismic only. I suppose it is. I think the S-E-G part of SEG-Y stands for "Society of -- something -- geologist," but I don't know.

Q. Given that the NEB didn't know or control what third parties were doing with Seismic Data from the FIO, then they also didn't provide any notice to seismic companies about what third parties were doing

[Page 481]

1 with the seismic materials from the FIO; isn't that

2 right?

3 A. Correct. We made available to the public

4 information in the FIO that had passed the privilege

5 period as identified in CPRA.

6 Q. Sir, I told you we would get back to the

7 Arctic moratorium at some point in time. I'd like to

8 do that now.

9 A. Now is the time?

10 Q. Yes. And so there is currently an Arctic

11 moratorium on offshore oil-and-gas development in

12 Canada; is that right?

13 A. I don't know if the word "moratorium" is the

14 one word used when then-U.S. President Obama and Prime

15 Minister Trudeau agreed to things. There was an end

16 to new licensing in the end of 2016. If that means

17 "moratorium," then that's an interpretation. I don't

18 recall the word "moratorium." It may be there, but I

19 just don't recall it.

20 Q. Thank you. I agree with you that it's a

21 matter of interpretation.

22 So -- and I just want to make clear so that

[Page 482]

1 everybody is aware, you mentioned President Obama and

2 Prime Minister Justin Trudeau, that's because there

3 was a joint agreement with respect to that Arctic area

4 that is close to Alaska and the Yukon and Northwest

5 Territories?

6 A. It referred to the Arctic offshore, that's

7 offshore Alaska, Yukon, and the Northwest Territories.

8 Q. And as you said, it came into effect in

9 2016; right?

10 A. Late 2016, if I remember correctly.

11 Q. That stop on issuing licenses in that area

12 is to be reviewed every five years?

13 A. Correct.

14 Q. There's a committee set up to conduct the

15 review every five years to examine whether to proceed

16 with further development in that area; is that right?

17 A. Correct.

18 Q. Canada or the NEB and the FIO still

19 discloses Seismic Data in that area; is that right?

20 A. There's no prohibition on making people

21 access -- letting people access information that has

22 passed the privilege period.

[Page 483]

1 Q. Right. And so, therefore, there's no

2 distinguishing between areas that you might not be

3 issuing licenses to produce hydrocarbons for. You

4 still give out the seismic materials in respect of

5 those areas?

6 A. Maybe a couple of things. The NEB and now

7 the CER does not issue licenses. It issues

8 authorizations to enable people to undertake certain

9 oil-and-gas activities. It doesn't give them any

10 rights. Those are issued -- the rights issuance is

11 done by government departments, not the NEB. There

12 was a second part, but I can't remember.

13 Q. You're still disclosing the seismic

14 materials because you're not distinguishing whether

15 licenses are being issued in that area or not.

16 I didn't talk about who was issuing it.

17 A. I interpreted that to mean the NEB, but NEB

18 does not issue any rights, licenses, or permits. And,

19 to repeat, the information that's passed privilege is

20 available in the FIO.

21 Q. Are you aware -- I know you're retired, but

22 are you aware that President Trump has rescinded one

[Page 484]

1 of former President Obama's Executive Orders for that

2 particular area and that agreement that we were

3 talking about in the Arctic?

4 A. I wish to tune out all this noise.

5 Q. So I don't know if that means you're aware

6 or if you don't mean that.

7 A. I've heard a number of things that are

8 attributed to U.S. President Trump. I don't pay any

9 attention to that.

10 Okay. So you don't know that he's taken

11 more interest in Arctic areas, including in Greenland,

12 for minerals?

13 A. There's a lot of stuff in the news. I'm not

14 fixated by it.

15 Q. The next five-year review is up in 2026 on

16 Canada's side; is that right?

17 A. If the arithmetic is correct, every

18 five years, then, yes.

19 Q. By the time that we get to that review in

20 2026, it's entirely possible that new licenses will

21 start being issued in the Arctic; correct?

22 A. That would be up to the Federal Government

[Page 485]

1 to decide.

2 Q. Of course. But it is possible that they

3 decide to start issuing licenses again in the Arctic?

4 A. They may start to do that. I'm just trying

5 to recall what the Cabinet Order regarding issuance of

6 authorizations is. Licensing themselves does not

7 permit, enable, allow an operator to do oil-and-gas

8 exploration and production activities without an

9 operating license and an authorization under

10 COGOA 5 -- Section 5.

11 Q. Sorry. It seems that maybe you're getting a

12 bit more technical than I had asked the question.

13 A. I'm just trying to be careful because

14 Madam Chair had cautioned me that I need to speak the

15 truth, so I'm trying to be as accurate as I can.

16 Q. Fair enough. And I want you to do that.

17 But I guess what I'm saying is, it's entirely possible

18 that -- after the 2026 committee review on the Arctic

19 development that, in fact, hydrocarbon development

20 proceeds after that review?

21 A. That's speculative. I don't want to go into

22 that area.

[Page 486]

1 Q. You don't know of any reason why that's not

2 possible?

3 A. I don't know a reason why it's not possible.

4 I don't know how probable it is or anything like that.

5 Q. In your Witness Statements, you referred to

6 a sampling of correspondence between GSI and the NEB

7 over the past, I think, 26 years. And GSI

8 consistently was taking the position that its seismic

9 materials were copyright, didn't it?

10 A. And we consistently maintained that the

11 governing statutes are the CPRA and COGOA.

12 Q. Sir, I'd like to show you an exhibit that

13 was attached to your Witness Statement. It's

14 Exhibit C-413. And it's a letter dated June 4, 2010,

15 from Natural Resources Canada.

16 Do you see that, sir?

17 A. I do. Sorry, I do.

18 Q. Thank you. I know this is attached to your

19 Witness Statement, and you were not at Natural

20 Resources Canada; correct?

21 A. Correct.

22 Q. No witnesses were put forward in this

[Page 487]

1 Arbitration from Natural Resources Canada; isn't that

2 right?

3 A. I wouldn't know. I didn't check who the

4 witnesses were, but I'm taking your word for it.

5 Q. It wasn't a trick question.

6 There is no one from Natural Resources

7 Canada put forward as a witness in this Arbitration.

8 A. All right.

9 Q. So I think that's probably why this letter

10 ended up in your Witness Statement, sir. Marc D'Orio

11 wrote this letter, if we just scroll down.

12 Do you see that?

13 A. Yeah. Yes.

14 Q. He was the Director General of the Office of

15 Energy Research & Development for Natural Resources

16 Canada.

17 Do you see that?

18 A. Yeah. I know Marc.

19 Q. You know Marc. Good. Do you know why he

20 wasn't called as a witness in this Arbitration?

21 A. I do not.

22 Q. And the Natural Resources Canada, that's the

[Page 488]

1 department of Canada that oversees the natural

2 resources in Canada, like minerals and oil and gas;

3 right?

4 A. The name implies that, yes.

5 MR. LUZ: I'm sorry. Matti, can I interrupt

6 for a second.

7 Can you point out where in Mr. Dixit's

8 Witness Statement this document is?

9 MS. LEMMENS: I understood it to be -- I

10 don't have it in my current notes, but just give me a

11 minute.

12 MR. LUZ: I'm not sure it is.

13 MS. LEMMENS: I thought he had provided some

14 commentary on it. If I have that incorrect, maybe I

15 mixed it up with another witness, I apologize.

16 BY MS. LEMMENS:

17 Q. Are you familiar with this letter, sir?

18 A. I am not. I'm trying to recall where it may

19 have been in my documents. I reviewed them in the

20 last week or so. I don't recall it. That doesn't

21 mean it's not there. I just don't recall it.

22 MR. LUZ: I think for the record, we should

[Page 489]

1 note that it is not in Mr. Dixit's Witness Statement.

2 MS. LEMMENS: I don't know that. I

3 apologize if I got that wrong. It might be in one of

4 your other Witness Statements.

5 MR. LUZ: I believe it's in Mr. Einarsson's

6 Witness Statements, but for Mr. Dixit, I don't think

7 it is. You can search, but we don't have a record of

8 it.

9 MS. LEMMENS: Okay. Then I will leave the

10 questions alone because he's not familiar with the

11 document.

12 BY MS. LEMMENS:

13 Q. Are you aware of whether the Geological

14 Survey of Canada ever sought the NEB's advice about

15 whether seismic materials available at FIO are

16 copyright?

17 A. I don't recall any of that.

18 Q. At the end of your initial Witness

19 Statement, sir, there is a map at Annex 3.

20 A. Yes.

21 Q. And this map is intended to show GSI seismic

22 material in offshore areas of Canada and non-GSI

[Page 490]

1 seismic material in the offshore areas of Canada; is

2 that right?

3 A. Yes.

4 Q. Did you create this map?

5 A. The office did. The NEB did. I didn't,

6 personally, do it.

7 Q. Oh. Do you know how to create a map like

8 this?

9 A. I do not.

10 Q. So who created this map?

11 A. Somebody who is more familiar with creating

12 maps like this.

13 Q. Do you know who created it?

14 A. I do not.

15 Q. Do you know why it was created?

16 A. To illustrate where Seismic Data that the

17 FIO has.

18 Q. And so who provided this map to you?

19 A. Staff within the NEB.

20 Q. Who was that?

21 A. I don't know. I think I said that.

22 Q. Sorry. But I'm just trying to understand,

[Page 491]

1 how did you obtain this map?

2 A. I must have asked for it.

3 Q. You asked for this map for your Witness

4 Statement?

5 A. I asked for a map that showed where seismic

6 lines were.

7 Q. And you asked who?

8 A. I don't remember.

9 Q. So you got this map for your Witness

10 Statement, and you don't know who gave it to you or

11 who created it or who you talked to to obtain it?

12 A. I don't recall.

13 Q. So did you verify whether it was accurate or

14 not?

15 A. I didn't validate it, personally, no.

16 Q. Do you know whether it's accurate?

17 A. I believe it is, but I don't know. I don't

18 know if it's not.

19 Q. So given that you don't know how to create

20 the map and you don't know who created the map, do you

21 understand what it's supposed to represent?

22 A. Isn't that what the legend is for?

[Page 492]

1 Q. Did you ask for that legend?

2 A. Yes.

3 Q. Who did you ask?

4 A. Yes. A map that would show GSI's lines and

5 non-GSI lines that was with the NEB. I don't remember

6 who I asked.

7 Q. Do you have any records of whether you asked

8 somebody for that?

9 A. I do not.

10 Q. Did you call someone?

11 A. I may have. I don't know.

12 MR. LUZ: I think the question has been

13 asked and answered.

14 MS. LEMMENS: I don't know that it's been

15 answered, but maybe it's been asked.

16 THE WITNESS: You certainly have asked

17 several times. You know, I don't remember who I

18 asked. It was in 2023, the Statement. I don't know

19 who I asked.

20 BY MS. LEMMENS:

21 Q. On the map we see data in the Arctic

22 Beaufort Sea area, and we also see data on the

[Page 493]

1 Newfoundland and Nova Scotia areas.

2 Do you see that?

3 A. Yes, I do.

4 Q. So is that all data that is housed within

5 the CER?

6 A. I believe it is.

7 Q. So in other words, the CER continues to

8 maintain offshore Seismic Data in the Nova Scotia and

9 Newfoundland Labrador areas?

10 A. I think we talked about this earlier where

11 the NEB, at that time, was the recipient of the

12 federal copies of information that was provided to

13 COGLA for oil-and-gas exploration production

14 activities.

15 Q. Right. So in other words, there were copies

16 made of COGLA's data when it got transferred to the

17 C-NSOPB and the C-NLOPB in order for those offices to

18 also have seismic materials covering those areas;

19 isn't that right?

20 A. I don't know. I don't know what information

21 was asked to be submitted to the Regulator, COGLA at

22 that time, whether it was one or more copies. It may

[Page 494]

1 be they were asked to provide more than one copy: One

2 federal, which is what is archived in the NEB's

3 offices; and another one that was in the provincial

4 domain that went to the Offshore Petroleum Boards.

5 Q. Did you speak to Doug Uffen in requesting

6 this map?

7 A. I don't recall who is Doug Uffen is?

8 Q. Okay.

9 A. Who is he?

10 Q. He's an Expert in this proceeding.

11 A. I don't remember speaking to any Doug Uffen

12 regarding this map.

13 Q. Did you offer to have this map created, or

14 were you asked by someone to have a map created?

15 A. I'm sorry. Would you repeat that for me,

16 please?

17 Q. Did you offer to have this map created, or

18 did you -- were you asked to have this map created?

19 A. My recollection is I asked for the map to be

20 created.

21 Q. Did you speak to Mr. Makrides and

22 Mr. Bennett about their Witness Statements?

[Page 495]

1 A. I have not.

2 Q. Are you aware that your Witness Statements

3 follow a very similar format and have similar maps at

4 the end of them?

5 A. I don't remember reading or seeing either of

6 those two people's Witness Statements to this

7 Tribunal.

8 Q. Did you discuss preparing your Witness

9 Statements together?

10 A. I did not. I retired in 2022 and I haven't

11 spoken to Carl since then.

12 Q. And Mr. Bennett?

13 A. Nor him. I just know Carl better than

14 Mr. Bennett.

15 Q. Understood. And you mean Mr. Carl Makrides?

16 A. I do mean Mr. Carl Makrides, Chief

17 Conservation Officer at the C-NSOPB.

18 Q. As the Chief Conservation Officer for a

19 period of time, you were familiar with the requirement

20 to maintain Seismic Data within Canada and not remove

21 or destroy it without asking for your permission?

22 A. I believe that is the requirement in the

[Page 496]

1 Canada Oil and Gas Geophysical Operations Regulation.

2 Q. And so do you know whether any companies

3 have abandoned the storage of some of their Seismic

4 Data?

5 A. I do not.

6 Q. And do you know, then -- probably not, but

7 I'll ask the question -- do you know whether any

8 companies that have abandoned Seismic Data still have

9 their data with the Boards; and, therefore, it shows

10 up on your map?

11 A. I do not.

12 Q. Do you know whether any of the data on this

13 map has been destroyed?

14 A. I do not.

15 Q. In the mid-2000s, the NEB considered a plan

16 to make nonexclusive data available online in a

17 digital format alongside the C-NSOPB where

18 Mr. Makrides works; is that right?

19 A. If you were referring to a joint data

20 repository, there were talks about that. I don't

21 think it ever came to be.

22 Q. I understand it hasn't come to be. But I'd

[Page 497]

1 like to talk about the possibility that was being

2 discussed in the mid-2000s.

3 So you would agree with me that there was a

4 discussion by the NEB about a shared data repository

5 for Seismic Data; correct?

6 A. I don't recall being at any such meeting.

7 If it was, it was exploratory in which such a concept

8 was discussed. I don't believe anything came out of

9 it.

10 Q. Sir, and so perhaps you were not at the

11 discussions. Do you recall someone named Rudy

12 Klaubert who was at the NEB?

13 A. Rudy Klaubert was at the NEB. I don't know

14 when he retired. He probably retired before I became

15 Director, before I became the Chief Conservation

16 Officer. So there would have been prior to 2005.

17 Q. And he participated in the discussions with

18 the other Boards regarding the shared data repository

19 for Seismic Data; isn't that right?

20 A. He may have. I don't know.

21 Q. The shared data repository was intended to

22 host field and SEG-Y Data; correct?

[Page 498]

1 A. If you say so. As I said, I don't know the

2 content of that meeting.

3 Q. The shared data repository was going to

4 apply retroactively to all of the Seismic Data that

5 the NEB and the other Boards had; is that right?

6 A. You know, I don't understand the question.

7 We, the NEB, are not in receipt of any Field Data or

8 any SEG-Y data. And so I'm not in a position to say

9 what -- how we could archive that because we don't

10 have it.

11 Q. Do you know whether the other Boards have

12 SEG-Y and Field Data?

13 A. I don't know. Yeah.

14 Q. Why did that plan not proceed?

15 A. I don't know.

16 Q. Do you think that the NEB had the discretion

17 to proceed with such a plan?

18 A. We never explored it further than that one

19 meeting that I remember it in my documentation that I

20 looked at last week.

21 Q. Sir, at your Second Witness Statement at

22 Paragraph 10, you discuss a set of Meeting Minutes for

[Page 499]

1 a meeting that you were not present at. It is at

2 Exhibit C-483. Let's pull that one up.

3 And so here we see the Meeting Minutes of a

4 joint Government/Industry Frontier Geophysical

5 Committee dated June 24, 1999.

6 Do you see that?

7 A. I do.

8 Q. You're familiar with this document?

9 A. I looked at it in the last week, yes.

10 Q. And so, we are just looking at the attendees

11 here, and, it looks like, Rudy Klaubert of the

12 National Energy Board was there?

13 A. Yes, he was, plus three others.

14 Q. Laura Richards and Terry Baker also the

15 National Energy Board?

16 A. And Bonnie Grey, Dr. Grey.

17 Q. Sorry. Am I missing that? Oh, Bonnie Grey.

18 I see it now.

19 And if we scroll down, just to make sure

20 that we have seen all of the attendees, you're not one

21 of the attendees?

22 A. No, I'm not.

[Page 500]

1 Q. So you don't exactly know what was discussed

2 then at this meeting other than what is contained in

3 this document; is that right?

4 A. That's correct. It's dated 1999, and I had

5 not been involved in that aspect of the Board's work.

6 Q. Okay. And so when you go on to describe it

7 in your Witness Statement, because you were not there,

8 we should rely on the words in the document?

9 A. All right.

10 Q. You see that no one from GSI was invited to

11 this meeting?

12 A. Okay.

13 Q. Do you agree with me?

14 A. I don't see their name, so...

15 Q. Okay. And are you aware --

16 A. Let me rephrase that. They weren't in

17 attendance. I don't know whether they were invited or

18 not.

19 Q. But they were not in attendance?

20 A. Their names are not on there.

21 Q. And, sir, I'm just going to scroll down a

22 little bit to this document.

[Page 501]

1 Sir, you'll see here at the bottom of the

2 screen that there was a further discussion on the

3 issue of scanning companies and copyright violations.

4 "NEB explained its position that there is no transfer

5 of ownership of data from operators to the government

6 when data is submitted. The data is also not placed

7 in the public domain when the Regulators release the

8 information from privilege status under the

9 legislation. Ownership of the data rests with the

10 operators and they must enforce that ownership if they

11 feel their data is being misappropriated."

12 Do you see that?

13 A. I do see that statement.

14 Q. And that's an accurate statement from the

15 NEB at that time or do you just have no information

16 about that?

17 A. I have no information about that. My

18 observation is, since we are not receiving Field Data

19 or -- we -- we -- I don't have anything else. We

20 don't have -- we don't get the data so we don't -- I

21 didn't deal with any ownership matters.

22 Q. Sorry. Are you saying that the NEB doesn't

[Page 502]

1 have any Seismic Data?

2 A. We don't have any Field Data or SEG-Y

3 information. So --

4 Q. I don't see a reference to that.

5 A. That's my interpretation. When this says

6 that the operators -- when data is submitted, "data"

7 I'm interpreting it to mean "Field Data" or some more

8 detailed --

9 Q. I don't think it says that actually.

10 A. No, it doesn't say that. That's my

11 interpretation, I said.

12 Q. Okay. But you weren't there?

13 A. I was not there.

14 Q. And just below that, you see that there's a

15 section on "data repository"?

16 A. There is a section, yes.

17 Q. And so, there the C-NOPB was speaking about

18 its initiative on the creation of an East Coast

19 Offshore Data Repository?

20 A. Yes.

21 Q. And industry was expressing concerns about

22 that.

[Page 503]

1 Do you see that?

2 A. Yes.

3 Q. And you note also that, in the second

4 paragraph there, "The NEB requested that it also be

5 involved since it is a Regulator in the area as well,"

6 the Gulf of the St. Lawrence. So, in fact, the NEB

7 was involved in that shared data repository

8 discussion, yes?

9 A. Appears to be, but I don't know.

10 Q. Just bear with me for a moment. I'm just

11 reviewing the last parts of my notes.

12 Sir, do you know what "exclusive" versus

13 "nonexclusive" data is?

14 A. In a broad sense, yes.

15 Q. What is exclusive data?

16 A. Exclusive data is something that a company

17 acquires for its sole use only, whereas speculative or

18 nonexclusive is information that is collected by a

19 company that markets it to a number of potential

20 users.

21 Q. And so, Canada doesn't actually ask for any

22 proof of data ownership when Seismic Data is submitted

[Page 504]

1 to the NEB; right?

2 A. Correct.

3 Q. The NEB had applied different

4 confidentiality periods for exclusive versus

5 nonexclusive Seismic Data; right?

6 A. The CPRA stipulates a period of privilege,

7 and there's an administrative period after that for

8 nonexclusive geophysical information.

9 Q. And so it has different confidentiality

10 periods for exclusive versus nonexclusive?

11 A. Yeah. As I said, either there's a statutory

12 part and there's an administrative part.

13 Q. But given the NEB takes no steps to

14 determine whether the seismic is exclusive or

15 nonexclusive, how does Canada determine which

16 confidentiality period to apply to the Seismic Data?

17 A. Because the status of the operation is at

18 the stage of the authorization. So the authorization

19 says whether it is exclusive or nonexclusive.

20 Q. So when you were approving authorizations,

21 you were saying whether it was exclusive or

22 nonexclusive, how the ownership would be for that

[Page 505]

1 data?

2 A. The applicant would declare whether it was

3 exclusive or not exclusive. We didn't do any

4 sleuthing to determine whether it was one or the

5 other. They declared, the applicant declared.

6 Q. And you also indicated in your Witness

7 Statement that you weren't involved in the allowable

8 expenditure credit applications; is that right?

9 A. That is correct. That is not something that

10 the NEB does. It is by the rights issuer.

11 Q. But do you understand that those allowable

12 expenditure credits are worth significant sums to the

13 companies that are awarded those credits?

14 A. Against commitments that they have made,

15 yes.

16 Q. Right. And those can amount to millions of

17 dollars?

18 A. It depends, yes.

19 Q. When the allowable expenditure credit

20 applications are made and Seismic Data is submitted

21 with them, the Seismic Data goes to the NEB's FIO; is

22 that right?

[Page 506]

1 A. After the expiry of the privilege period.

2 Q. So what privilege --

3 A. Let me just rephrase it.

4 Information that is submitted to us pursuant

5 to the Canada Oil and Gas Geophysical Operations

6 Regulations, Section 38, is what we receive, and after

7 the expiry of the privilege period, that information

8 goes to the FIO.

9 Q. So the Seismic Data that is submitted with

10 an allowable expenditure credit is treated in the same

11 manner as Seismic Data that is submitted under a

12 geophysical authorization?

13 A. Each authorization is its own application,

14 and we treat it as such.

15 Q. Sorry, but the allowable expenditure

16 applications are different from the authorizations,

17 aren't they?

18 A. The expenditure applications are sent to the

19 departments that have rights issuance

20 responsibilities, not us.

21 Q. Right. So the allowable expenditure credit

22 applications do not go to, let's say, you while you

[Page 507]

1 were the Chief Conservation Officer under COGOA;

2 correct?

3 A. Correct.

4 Q. But a geophysical authorization does go to

5 you for approval?

6 A. Correct.

7 Q. And, yet, the Seismic Data that is submitted

8 with both of those types of authorization and

9 applications are treated in the same manner by the

10 NEB.

11 Is that what you're saying?

12 A. I'm trying to understand what "in the same

13 manner" means. Statutorily, CPRA does not make a

14 distinction between "exclusive" and "nonexclusive," so

15 it affords a period of five years for privilege for

16 geophysical information. Administratively we add

17 another 10 years for nonexclusive geophysical

18 information.

19 Q. And the NEB also doesn't differentiate

20 between Seismic Data that is submitted as part of an

21 allowable expenditure credit application versus

22 geophysical information that is submitted in

[Page 508]

1 accordance with the geophysical authorization. Is

2 that right?

3 A. I'm not sure I'm getting what you are --

4 Q. Are you aware that Seismic Data is submitted

5 as part of an allowable expenditure credit

6 application?

7 A. Since we do not receive that, I don't know

8 what is contained in that allowable application, that

9 allowable expenditure application.

10 Q. Okay. And nobody from NRCan or CIRNAC has

11 been called to testify, the parties that actually

12 reviewed these allowable expenditure credit

13 applications?

14 A. I don't know who is asked to come in front

15 of this Tribunal, except myself.

16 Q. And just to be clear, NRCan or CIRNAC are

17 the ones that actually deal with the allowable

18 expenditure credit applications; is that right?

19 A. That is correct. For their respective

20 administrative areas.

21 Q. Sir, in your First Witness Statement you

22 suggested that the NEB responded to GSI's Access to

[Page 509]

1 Information Act requests reasonably.

2 Do you accept that GSI was successful in

3 challenging various deficient responses from the NEB?

4 A. I think that's a harsh characterization. We

5 responded to the Access to Information Application as

6 it was received. We got additional clarification. We

7 interpreted the Access to Information Act, and we

8 provided information that was requested.

9 Q. Do you recall that there was, in fact, a

10 federal court decision in 2003 that compelled the NEB

11 to provide the names of parties that were accessing

12 GSI's Seismic Data at the NEB?

13 A. Yes.

14 Q. And prior to that, the NEB had, in fact,

15 refused to provide that information. It had to be

16 compelled to do that?

17 A. The NEB interpreted Section 20 of the Access

18 to Information Act the way it did because it felt that

19 disclosure of some names were contrary to the

20 provisions of subsection (1). That view was upheld by

21 the Information Commissioner, and then subsequently

22 overturned by a tribunal.

[Page 510]

1 Q. And so you do accept that GSI successfully

2 challenged some of the deficient responses by the NEB

3 under the Access to Information Acts?

4 A. That's what courts do. They decide.

5 Q. Thank you.

6 MS. LEMMENS: Would it be possible to just

7 liaise with my team for five minutes?

8 THE WITNESS: I can step out.

9 MS. LEMMENS: It's okay, sir.

10 PRESIDENT WALLGREN-LINDHOLM: Yes. That's

11 okay. I think the team will step out. Yeah?

12 MS. LEMMENS: Yes.

13 PRESIDENT WALLGREN-LINDHOLM: Yeah.

14 Five minutes is fine.

15 MS. LEMMENS: Thank you.

16 (Pause.)

17 PRESIDENT WALLGREN-LINDHOLM: So will there

18 be further questions?

19 MS. LEMMENS: No, but thank you for the

20 indulgence to allow me to liaise with my team.

21 PRESIDENT WALLGREN-LINDHOLM: Thank you.

22 And then will there be redirect?

[Page 511]

1 MR. LUZ: A brief one, if the Tribunal will

2 tolerate a little bit longer before --

3 PRESIDENT WALLGREN-LINDHOLM: I think you

4 have a right to redirect, so please go ahead.

5 MR. LUZ: Thank you. It won't be long.

REDIRECT EXAMINATION

7 BY MR. LUZ:

8 Q. Mr. Dixit, can you see me around the

9 computer screen?

10 A. I can.

11 Q. Thank you. Paragraphs 44-46 of your First

12 Witness Statement, you discussed various

13 correspondence that you had with Mr. Einarsson in

14 2010.

15 A. Just give me a second to get to those

16 paragraphs.

17 Q. Sure.

18 A. 44 to --

19 Q. 44 to 46.

20 A. Yes.

21 Q. Okay. I'm just going to take you to two of

22 the exhibits, two of the letter, your -- two of your

[Page 512]

1 correspondence with Mr. Einarsson from 2010 regarding

2 the Board's position on the release of nonexclusive

3 Seismic Data.

4 Can we pull up Exhibit C-207.

5 PRESIDENT WALLGREN-LINDHOLM: Can you see?

6 THE WITNESS: I need to go into occlusion so

7 that I won't -- to see this.

8 BY MR. LUZ:

9 Q. Sure. If you can pull this up and you can

10 review just to refresh your memory. It's a letter

11 dated May 21, 2010, from you to Mr. Einarsson?

12 MS. LEMMENS: I'm not sure where this is

13 going, but I didn't ask him about this.

14 Does this arise from my cross-examination?

15 MR. LUZ: You were asking about the Board's

16 position on copyright.

17 MS. LEMMENS: Oh, okay.

18 MR. LUZ: Yes.

19 MS. LEMMENS: That's where you're drawing

20 that from?

21 MR. LUZ: Yes.

22 MS. LEMMENS: Okay.

[Page 513]

1 (Comments off microphone.)

2 BY MR. LUZ:

3 Q. Okay.

4 Well, let's -- do you recall this letter?

5 A. I do.

6 Q. We will just scroll -- we'll just go to

7 Page 2 under the heading "Intellectual Property

8 Rights."

9 A. Yes, I see that.

10 Q. Okay. And then the first sentence of the

11 second paragraph under the heading "Intellectual

12 Property Rights"?

13 A. I see that.

14 Q. Says: "The Board acknowledges that GSI's

15 information may be subject to copyright. In any

16 event, the Board notes that the disclosure of the

17 information after the expiration of the 15-year term

18 is consistent with Canadian copyright laws and, in

19 particular, the Supreme Court of Canada's direction in

20 CCH Canadian Ltd. v. Law Society of Upper Canada"?

21 A. Yes.

22 Q. Do you recall that that was the Board's

[Page 514]

1 position in response to GSI's inquiries on the issue?

2 A. Yes.

3 Q. Okay. You had one other set of

4 correspondence with Mr. Einarsson that just refers to

5 this letter. We'll just pull it up. It is C-209. It

6 is dated August 12, 2010?

7 A. Yes.

8 Q. Just take a look at the letter and see if

9 you recall it.

10 A. I do.

11 Q. And in the second paragraph it says: "It is

12 requested that GSI direct additional questions

13 relating to the filing and release of Seismic Data to

14 Karen Beattie, Legal Counsel for the NEB"?

15 A. Correct.

16 Q. And then in the second -- in the last

17 paragraph: "In terms of the request for confirmation

18 set out in 27 July 2010 correspondence, we have not

19 been persuaded that a modification in the Board's

20 process relating to the filing or release of Seismic

21 Data is warranted. Our position has not changed from

22 the 21 May 2010 correspondence," which we just

[Page 515]

1 reviewed?

2 A. Correct.

3 Q. "As such, we are not in a position to

4 provide confirmation that confidentiality over GSI's

5 Seismic Data will be maintained for an indefinite

6 period of time."

7 A. Correct.

8 Q. Do you recall that being the Board's

9 position at the time?

10 A. Yes.

11 Q. Thank you, Mr. Dixit.

12 MR. LUZ: I don't have any other questions.

13 PRESIDENT WALLGREN-LINDHOLM: Thank you,

14 Mr. Luz.

15 Mr. Trey Gowdy, co-Arbitrator, has a couple

16 of questions. Please go ahead.

QUESTIONS FROM THE TRIBUNAL

18 ARBITRATOR GOWDY: All right. Thank you,

19 Madam President.

20 Dr. Dixit, let me, if I can, impose upon

21 you -- if we can pull up RWS-01, which I think is

22 your -- maybe your Third Witness Statement, but it's

[Page 516]

1 the one that I'm most interested in. I don't have the

2 capacity to pull it up, but if someone does, that

3 would be great, so you could take a look at it.

4 THE WITNESS: Which paragraph?

5 ARBITRATOR GOWDY: Paragraph 34.

6 THE WITNESS: Yes, sir.

7 ARBITRATOR GOWDY: So I count some iteration

8 of the word "borrow" three times in the first two

9 sentences.

10 What do you mean by "borrow"?

11 THE WITNESS: It means to take from the FIO

12 documents.

13 ARBITRATOR GOWDY: So it would --a synonym

14 would be "to take," "a taking."

15 THE WITNESS: Correct.

16 ARBITRATOR GOWDY: Okay. Let me go down

17 kind of to the middle of that. At some point, the

18 language changed on your disclaimer, for want of a

19 better explanation. I'll read it to you. As you've

20 said, the NEB added language in 2006 which stated

21 parenthetically or in quotes: "I am aware that the

22 information and data contained in these materials may

[Page 517]

1 be protected under the intellectual property laws of

2 Canada and may only be used in a manner consistent

3 with those laws."

4 Why was that language added?

5 THE WITNESS: With abundance of caution,

6 because we weren't sure what was confidential and what

7 was not, and so we wanted to have the users be aware

8 that they may have information that is copyright, but

9 we can't warrant and we haven't checked, and we don't

10 have a position one way or another.

11 ARBITRATOR GOWDY: But would that caution

12 have existed prior to 2006, or whenever you made the

13 change?

14 THE WITNESS: The change was made because

15 there was increased interest in copyright that was

16 being brought up in correspondence and other

17 discussions.

18 ARBITRATOR GOWDY: Interest from whom or by

19 whom?

20 THE WITNESS: As I recall, GSI was one of

21 the people who had talked about copyright, and it had

22 come up in another discussion circa 2000.

[Page 518]

1 ARBITRATOR GOWDY: And so the purpose of

2 adding that language -- I don't want to put words in

3 your mouth, because it's your testimony and your

4 Statement. The purpose of adding that language would

5 have been to do what?

6 THE WITNESS: Just make the users of the FIO

7 be aware that there may be copyright information there

8 and, with abundance of caution, we're putting that

9 sign up and that disclosure.

10 ARBITRATOR GOWDY: And if there had

11 been -- now, it says "Intellectual Property Law." You

12 used the word "copyright," so I'll use the same word

13 you used.

14 If the information had been copyrighted, how

15 would it have been treated differently?

16 THE WITNESS: It's like a library, so, you

17 know, if I borrow a book from the Calgary Public

18 Library, it may or may not have copyrighted stuff in

19 there, and it's up to the borrower to be aware and

20 abide by those requirements. The library doesn't

21 pursue whether the copyright was violated or not.

22 ARBITRATOR GOWDY: I do like the library

[Page 519]

1 analogy, except I don't know that the library requires

2 you to submit information to it.

3 THE WITNESS: The FIO does not require

4 information to be submitted to it. It is submitted to

5 the Regulator, and the FIO, the library, which is

6 housed in CADB's library, it is the mechanism by which

7 we're making it accessible to the users.

8 ARBITRATOR GOWDY: Okay. I probably asked

9 my question unartfully, so forgive me for that.

10 Was GSI required to produce information to

11 the Government of Canada?

12 THE WITNESS: Pursuant to its authorization

13 and the Regulations that applied to it.

14 ARBITRATOR GOWDY: All right. And what

15 obligation would the Government of Canada have to

16 protect copyrighted material beyond this disclaimer?

17 THE WITNESS: Our interpretation was that

18 the CPRA, the Canada Petroleum Resources Act, governs

19 when that information that is provided to us can be

20 disclosed.

21 ARBITRATOR GOWDY: All right. Let me go to

22 the -- so you say "abundance of caution to alert

[Page 520]

1 borrowers to their responsibility"?

2 THE WITNESS: Correct.

3 ARBITRATOR GOWDY: Do you have a position on

4 whether the holder of the material had any

5 responsibility to safeguard or enforce copyright laws

6 or just the borrower?

7 THE WITNESS: Just the borrower. We

8 don't -- we didn't have a position on the copyright.

9 ARBITRATOR GOWDY: And why would that be?

10 THE WITNESS: Because we believed that the

11 operative statute was the CPRA in terms of disclosure

12 of information.

13 ARBITRATOR GOWDY: Did you ever approach

14 your legal counsel -- I may mispronounce her name,

15 either Batey (phonetic) or Beatty?

16 THE WITNESS: Beatty.

17 ARBITRATOR GOWDY: Okay. Did you ever have

18 a conversation with her? I'm not asking you the

19 content of that conversation, but did you ever have a

20 conversation with her about reconciling copyright law

21 with requirements to provide information to your board

22 or agency?

[Page 521]

THE WITNESS: I did not.

ARBITRATOR GOWDY: Okay. That's all I have.

Thank you.

THE WITNESS: Thank you.

PRESIDENT WALLGREN-LINDHOLM: Thank you. I

would have a small question and then I would have a

clarification. Bear with me, I know it's late in the

day.

When you talk about "privilege" and then you

talk about "confidentiality," are you using these

words interchangeably?

THE WITNESS: When I use the word

"privilege," it is in reference to the words that I

used in the CPRA itself. In common use, we would use

the word "confidential."

PRESIDENT WALLGREN-LINDHOLM: So the word

"privilege" is in the law?

THE WITNESS: It's in Section 101 of CPRA,

yes.

PRESIDENT WALLGREN-LINDHOLM: I just looked

at it and I didn't see the word but maybe. Okay.

THE WITNESS: Yeah. It's there.

[Page 522]

PRESIDENT WALLGREN-LINDHOLM: That is

actually not my question, I can find out. But my

question was about information management at the

Agency -- at FIO -- how you manage information? And I

believe you said at one point that after the privilege

period had passed, it came to the shelves; right?

THE WITNESS: Correct.

PRESIDENT WALLGREN-LINDHOLM: So it

was -- who managed it's putting it on the shelf? Did

you receive it from somewhere.

THE WITNESS: No. It was staff within my

team.

PRESIDENT WALLGREN-LINDHOLM: So you decided

when either the five-year privilege or then your

administrative added which amounted to 15, when that

time had lapsed? And it would be free at the agency

to be borrowed?

THE WITNESS: Correct. So when an

application is made, the applicant declares whether

it's an exclusive or nonexclusive. And one year after

the program is finished is when the clock starts. And

at the expiry of the appropriate period, we make sure

[Page 523]

that that's the case, and that that information is

then moved to the FIO for people to be able to access

it.

PRESIDENT WALLGREN-LINDHOLM: Yes. So then

somebody in your team will decide if, you know, its

five years or 15 when applicable?

THE WITNESS: Correct.

PRESIDENT WALLGREN-LINDHOLM: Okay. So then

let me go to my clarification. I don't know, you

don't have access to the Transcript, presumably?

THE WITNESS: Of today's --

PRESIDENT WALLGREN-LINDHOLM: Yeah. No.

THE WITNESS: No.

PRESIDENT WALLGREN-LINDHOLM: But I will

still say where I'm asking for the clarification for

the benefit of Counsel. So it is -- it is 15:39:36.

And I believe -- I didn't hear what you said, and I

believe the Court Reporter also did not.

So therefore, I was interested to hear what

you believe you said there. And I will read it to

you, and then maybe you can fill in the blanks.

THE WITNESS: Certainly.

[Page 524]

PRESIDENT WALLGREN-LINDHOLM: Just a second.

I'm getting there. Bear with me. 15:39:36. Yes.

There was a discussion about the Accord Acts

at the Federal Canada level, and Accord Acts at the

Provincial level. And the question was from

Ms. Lemmens, "And they are not the CPRA; right?"

THE WITNESS: Correct.

PRESIDENT WALLGREN-LINDHOLM: Yes. And then

your answer is: "They are not copies of CPRA. They

bring together elements of COGOA and CPRA in the

Accord Implementation Acts."

THE WITNESS: Correct.

PRESIDENT WALLGREN-LINDHOLM: And then you

say -- this is where I need you to fill in the blanks.

You said, "Yeah, the COGOA is the Seed Act."

THE WITNESS: Correct.

PRESIDENT WALLGREN-LINDHOLM: And "Cede

Act." How do you spell that? C-e-d-e?

THE WITNESS: No, "S-e-e-d."

PRESIDENT WALLGREN-LINDHOLM: Oh, the "Seed"

Act. Okay. No wonder I didn't understand. Okay. I

am sorry if I bothered you in vain. Now I know what

[Page 525]

it says. Thank you very much.

THE WITNESS: Yeah. The intent was that

that's the nucleus.

PRESIDENT WALLGREN-LINDHOLM: I understand.

I understand the word "seed" now that I -- I

understand what you said. Very good.

THE WITNESS: Thank you.

PRESIDENT WALLGREN-LINDHOLM: Well, then, I

think that I will say thank you for coming, and you

are released now. Your testimony is concluded.

THE WITNESS: Thank you. Thank you.

PRESIDENT WALLGREN-LINDHOLM: Thank you very

much.

THE WITNESS: Goodbye.

(Witness steps down.)

PRESIDENT WALLGREN-LINDHOLM: We have one

small household matter, but while I, again, try to

pull up what we were going to tell you, I leave to

Claimants first the possibility to ask if there's

anything that you would like to raise in terms of

household matters?

MS. LEMMENS: As long as we're addressing

[Page 526]

what's happening with the -- I'll call them the

Valuation Experts.

PRESIDENT WALLGREN-LINDHOLM: Yeah.

MS. LEMMENS: The Damages Experts now. I

think that's all we want to make sure.

PRESIDENT WALLGREN-LINDHOLM: That's what

we're going to address.

Respondent? No.

So I will say what we have.

Now, for everyone's benefit, I discussed

this with Counsel off record here earlier, and I

recall the discussion we had Monday morning where

Respondent did not oppose the introduction of the

corrected/amended Expert Report but said that

Respondent might wish to give a submission and/or ask

the Expert to do an amended Report of its own after

the conclusion of this Hearing, but did not, thus far,

make a request to this effect.

And what we say now, I start sort of at the

end, I say that we will address that as and when that

request is made, but I understood that you wanted to

see the rollout of the cross-examination of the

[Page 527]

Experts prior to making that request.

So that we put to the side.

Then there was another request, and the

request you made was one of timing, and you said that

you would like your Expert to have an additional

15-20 minutes extra time for its own direct part, for

its own presentation. And I believe then Claimant

said that they might also wish to have some time to

explain the changes. And I note, and we have seen

that of course, there is already explanation in the

corrected/amended Expert Report.

So now I come to the conclusion namely, we

grant Canada another 15 minutes for its Expert and

5 minutes extra to Claimants. And that concludes what

we had to say now.

MR. LUZ: Thank you, Madam Chair.

Just because this was something that we were

discussing offline and we were asked if we were going

to have an additional Report ahead of time, we are

not. I think the only thing is that Brattle might

just adjust the numbers in their presentation in

response to Mr. Sharp. So it's not going to be

[Page 528]

anything new, it is just going to be a sort of

responding to what has been submitted. So it's not a

new Report or anything like that, but just that's the

extent.

PRESIDENT WALLGREN-LINDHOLM: Sorry. I

don't mean to cut you off, but the one that will be

presented when the Experts are heard?

MR. LUZ: Yes. Yes, Madam Chair, that's

all.

PRESIDENT WALLGREN-LINDHOLM: I see.

MR. LUZ: But there won't be any additional

Report or anything like that.

PRESIDENT WALLGREN-LINDHOLM: Okay.

MS. LEMMENS: If I could know those numbers

before the direct, that would be better. I don't

think it's -- just like we didn't think it was fair

for PwC to take the stand and in its direct provide

different numbers, and we provided the amended Report

as a result, I'm not saying it needs to be tonight,

but I would like to see just whatever new numbers it

is prior to the weekend.

MR. LUZ: We'll discuss that. I think we

[Page 529]

are just responding to -- I think Brattle will just

respond to what is in Mr. Sharp's Report. I don't

think there's going to be. It's just a response to

what it is and it will be in the presentation. I

think that's really all it's going to be.

PRESIDENT WALLGREN-LINDHOLM: May I suggest

that Counsel discuss this offline?

MR. LUZ: Sure.

PRESIDENT WALLGREN-LINDHOLM: And then

tomorrow you may wish to share with us your

conclusion, joint conclusion preferably.

And I will then close the second day and we

shall see you tomorrow at 9:30.

MR. LUZ: Thank you.

PRESIDENT WALLGREN-LINDHOLM: Thank you very

much.

(Whereupon, at 5:35 p.m., the Hearing was

adjourned until 9:30 a.m. the following day.)

[Page 530]

POST-HEARING REVISIONS

CERTIFICATE OF REPORTER

I, Dawn K. Larson, RDR-CRR, Court Reporter,

do hereby attest that the foregoing English-

speaking proceedings, after agreed-upon

revisions submitted by the Parties, were

revised and re-submitted to the Parties per

their instructions.

I further certify that I am neither counsel

for, related to, nor employed by any of the

Parties to this action in this proceeding, nor

financially or otherwise interested in the

outcome of this litigation.

[Signed]

Dawn K. Larson

[Page 531]

IN THE MATTER OF AN ARBITRATION UNDER CHAPTER ELEVEN

OF THE NORTH AMERICAN FREE TRADE AGREEMENT

AND

THE ARBITRATION RULES OF THE UNITED NATIONS COMMISSION

ON INTERNATIONAL TRADE LAW, AS ADOPTED IN 1976

HEARING ON JURISDICTION, MERITS, AND LIABILITY

Wednesday, March 5, 2025

Calgary Marriott Downtown Hotel

110 9th Avenue SE

Calgary, AB, T2G 5A6

Canada

The Hearing in the above-entitled matter

came on at 9:35 a.m. before:

MS. CARITA WALLGREN-LINDHOLM, President

MR. TREY GOWDY, Co-Arbitrator

MR. TOBY LANDAU KC, Co-Arbitrator

[Page 532]

ALSO PRESENT:

On Behalf of ICSID:

MS. GERALDINE R. FISCHER

Secretariat to the Tribunal

Realtime Stenographer:

MS. DAWN K. LARSON

Registered Diplomate Reporter (RDR)

Certified Realtime Reporter (CRR)

Certified Realtime Captioner (CRC)

Larson Reporting, Inc.

2564 West 280 North Street

Hurricane, Utah 84737

United States of America

+1 720 298 2480

[email protected]

DawnStenosTheWorld.com

[Page 533]

APPEARANCES:

Attending on behalf of the Claimants:

MS. MATTI LEMMENS

MR. VINCENT LANCTÔT-FORTIER

MS. MARIANNE BASTILLE-PARENT

Stikeman Elliott LLP

Bankers Hall, 4200 3 St SW West 888

Suite 14200

Calgary, AB, T2P 5C5

Party representatives:

MR. HAROLD PAUL EINARSSON

[Page 534]

APPEARANCES: (Continued)

Attending on behalf of the Respondent:

MR. MARK LUZ

MS. SYLVIE TABET

MS. JULIA DEUTSCH

MS. ELENA LAPINA

MS. CAMILLE BÉRUBÉ-LEPAGE (virtual)

Trade Law Bureau

Global Affairs Canada

Lester B. Pearson Building

125 Sussex Drive

Ottawa, Ontario K1A OG2

Canada

MS. MOLLY RUMPKE

Core Legal Concepts

MS. DAPHNÉE CAMPEAU

Global Affairs Canada

MR. ALEXANDER BLACK (virtual)

Crown-Indigenous Relations and Northern

Affairs Canada & ISC Legal Services,

Indigenous Rights and Relations Portfolio

MR. PETER WIGEN (virtual)

Canadian Heritage Legal Services

MR. MARK KLAVER (virtual)

Office Legal Services Sector

MR. FRANCO BELLO (virtual)

MS. KIM PHILLIPS (virtual)

MS. JESSICA MACINTOSH (virtual)

MS. JEAN-FRANCOIS ROMAN (virtual)

Natural Resources Canada

[Page 535]

APPEARANCES: (Continued)

Party Representatives:

MR. SÉBASTIEN FOURNIER (virtual)

Crown-Indigenous Relations and Northern

Affairs Canada

MR. SCOTT LITTLE (virtual)

MS. SUSANNA KAM (virtual)

MR. VINCENT BOULANGER (virtual)

Global Affairs Canada

MS. TARA SNELL (virtual)

MS. NATALIE GIASSA (virtual)

MS. PIERRE-LUC RACINE (virtual)

Innovation Science and Economic Development

MS. TIFFANY SANDERS (virtual)

MS. LYNETTE GIBBONS (virtual)

Canada Newfoundland & Labrador Offshore

Petroleum Board

Respondent's Party Representatives:

MR. MARKO VESELY

Canada Energy Regulator

MR. ALEX MILLER

Core Legal Concepts

MR. CHRIS REYNOLDS

Core Legal Concepts

Non-Disputing Parties:

MS. KRISTINA E. BEARD (virtual)

Office of International Claims and

Investment Disputes

U.S. Department of State

MR. ALAN BONFIGLIO RÍOS (virtual)

MS. PAMELA HERNÁNDEZ MENDOZA (virtual)

MR. ALDO GONZÁLEZ ARANDA (virtual)

Secretaría de Economía

[Page 536]

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PROCEEDINGS

PRESIDENT WALLGREN-LINDHOLM: Good morning,

everyone. Our third day of Hearing. It's the 5th of

March, and before we bring in the Witness, I would

like to ask the Parties if there are any household

matters.

Claimants?

MS. LEMMENS: Good morning, Madam Chair and

Members of the Tribunal. We did liaise with Canada as

directed or suggested, I'm not sure which one.

PRESIDENT WALLGREN-LINDHOLM: Either

MS. LEMMENS: And we have not necessarily

reached an agreement just yet about what is happening

with the presentation of the Brattle Expert evidence.

I only received a response this morning right before

we came in, so I just haven't had time to formulate

another response back.

PRESIDENT WALLGREN-LINDHOLM: I understand.

Well, thanks for the update. I don't think we are in

an extreme hurry on that information, and then so I

say thank you.

And then I'll turn to Respondent. Anything

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in particular before we take in the witness?

MR. LUZ: Nothing from Canada, Madam Chair.

PRESIDENT WALLGREN-LINDHOLM: I just have

one thing, and I will ask Mr. Makrides that he's in a

safe place and all these things. But have the

Parties -- between themselves, are you happy and he's

instructed as to where he should be and what he should

have in front of him? I don't know if anybody is

controlling that, but I'd like to talk to you before I

talk to him.

MR. LUZ: Yes, Madam Chair. We told

Mr. Makrides that he should be in a safe place by

himself without anyone around and that he has clean

copies of his Witness Statements, and that's it. No

notes. I think that's everything we instructed him

on.

I know he's nervous about the Zoom link and

the connection and so on, but -- and I should say, we

appreciate the accommodation of the Claimants to do

the cross-examination virtually so that he didn't have

to interrupt a very long-planned trip and say the same

thing to Mr. Bennett, who I understand has a

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grandchild that is being born very soon, and so he

didn't necessarily want to miss it from flying from

Newfoundland to here. So I appreciate it.

Thank you, Madam.

PRESIDENT WALLGREN-LINDHOLM: Thank you.

And Claimants? That is --

MS. LEMMENS: That is acceptable. I just

was wondering where the witnesses are located, if they

can just identify that when they come on the screen.

PRESIDENT WALLGREN-LINDHOLM: I shall ask

him. I understand he's in New Orleans,

the -- Mr. Makrides is in New Orleans, I presume.

MR. LUZ: That was the last I heard --

PRESIDENT WALLGREN-LINDHOLM: Yeah.

MR. LUZ: -- but I now believe Mr. Bennett

is in St. John's, but I think he is.

PRESIDENT WALLGREN-LINDHOLM: Yeah. Well,

maybe we'll ask him if he's the moving kind. Okay.

So we'll see.

(Interruption.)

PRESIDENT WALLGREN-LINDHOLM: Yes. Good

morning. Very good morning. Can you -- I can keep

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talking if that's preferable.

(Interruption.)

PRESIDENT WALLGREN-LINDHOLM: We shall now

ask Mr. Carl Makrides to be entered into this room

from the waiting room, and please give me a sign or

thumbs up or something when that has occurred, unless

we first see him here on the screen.

CARL MAKRIDES, RESPONDENT'S WITNESS, CALLED

PRESIDENT WALLGREN-LINDHOLM: Good morning,

Mr. Makrides.

THE WITNESS: Good morning.

PRESIDENT WALLGREN-LINDHOLM: Good morning.

Before I speak further, what do you see on

your screen?

THE WITNESS: I can see the meeting room

with a number of people.

PRESIDENT WALLGREN-LINDHOLM: Okay. So you

can see the whole room. Very good because then I can

conduct the proper introduction.

May I first ask you, Mr. Makrides, where you

are? You are in a confined room, I understand?

THE WITNESS: Yes. I'm in a hotel room in

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New Orleans, that's correct.

PRESIDENT WALLGREN-LINDHOLM: Very good.

And I understand that the Counsel from Canada

instructed you to be alone, to have a clean desk.

We're not going to inspect it, but we trust it's clean

and it has your Witness Statements and no notes.

Now --

THE WITNESS: A copy of my Witness

Statements. That's correct.

PRESIDENT WALLGREN-LINDHOLM: Yes. I don't

think we need to inspect it. I trust that it is as

Counsel instructed. So I will then proceed to the

introduction to your testimony.

Mr. Makrides, you have given two Witness

Statements before the commencement of this Hearing,

and Counsel for Canada will go through them with you,

and I understand and trust that you know what these

proceedings are about, and I don't need to explain to

you the nature thereof. Can you confirm that?

THE WITNESS: Yes, that's correct.

PRESIDENT WALLGREN-LINDHOLM: In all events,

whether or not you have experience of testifying

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before Arbitral Tribunals, I ask that if you have any

questions or concerns, please address the Tribunal

with them.

So I cannot quickly think how you see us,

the angles, but I will point to my -- here where I

point that's Counsel for Claimant, the Einarssons and

GSI, and the Party that has called you to testify,

Canada, sits on that side. You might have seen a hand

raised.

THE WITNESS: Yes, I did.

PRESIDENT WALLGREN-LINDHOLM: This is the

Arbitral Tribunal. And to my right is Mr. Trey Gowdy

from the U.S., co-arbitrator; to my left is Mr. Toby

Landau KC, from England and Singapore. I am Carita

Wallgren-Lindholm, I'm a Finnish national and I'm

presiding.

To my far-right is the Secretary of the

Tribunal, Ms. Geraldine Fischer, from Washington,

D.C., representing ICSID, and behind her is the Court

Reporter.

I also wanted to say that, different from a

State court, we do not administer oath in

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international arbitration, but you still have an

obligation to speak the truth.

And any failure to speak the truth may have

consequences. You will be recorded and transcribed.

May I ask that you confirm for the record

that you will speak the truth?

THE WITNESS: Yes, I will speak the truth.

PRESIDENT WALLGREN-LINDHOLM: I am sure that

the Counsel for Canada has explained what will happen

here today, but I will still say you will have a short

direct examination by Canada, whereafter, you are

being cross-examined by Claimants on matters relevant

to this Arbitration in your knowledge and experience,

and then potentially to one or two more rounds. Do

you have access to Documents that will be shown?

THE WITNESS: I have some digital copies on

my laptop here.

PRESIDENT WALLGREN-LINDHOLM: Yes.

THE WITNESS: But I don't have any hard

copies, only digital copies.

PRESIDENT WALLGREN-LINDHOLM: Okay. But you

can follow, because I'm sure that Counsel will show

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you documents and may ask about them. I'm looking now

at Counsel for Claimants.

MS. LEMMENS: Yes, that's correct. We could

test it out at this moment, if you want to, if we

could just connect.

PRESIDENT WALLGREN-LINDHOLM: Maybe we

could -- yes.

MS. LEMMENS: Sir, are you able to see that

on your screen?

THE WITNESS: I don't see anything right

now -- I do now, yes. I just see the documents here

that just came up. Yeah.

MS. LEMMENS: So that, I think, is just your

Witness Statement there. One of them.

THE WITNESS: Yeah, I can see it there,

yeah.

PRESIDENT WALLGREN-LINDHOLM: Yes, and

Mr. Makrides, if -- in case there are breaks in your

testimony, we will break and have a pause, then I

already now tell you that, in such case, when we

break, you should not communicate with anybody about

your witness testimony during the break, nor liaise

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with Counsel.

(Overlapping speakers.)

PRESIDENT WALLGREN-LINDHOLM: Yes. Thank

you. That's -- sorry? You were saying something,

sir?

THE WITNESS: No, I wasn't. Sorry.

PRESIDENT WALLGREN-LINDHOLM: No. Okay. So

unless you have further questions, I will turn to

Counsel for Respondent to conduct the introduction.

Thank you.

(Overlapping speakers.)

THE WITNESS: I have no questions. Thank

you.

PRESIDENT WALLGREN-LINDHOLM: Thank you.

So will that be you, Mr. Luz? Yes.

MR. LUZ: Yes, thank you, Madam Chair.

DIRECT EXAMINATION

BY MR. LUZ:

Q. Good morning, Mr. Makrides.

I'm not sure which direction to look, we

have some screens where I can see your face, and so

please don't take my lack of eye contact as anything

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other than we don't know exactly where to look.

Do you have -- well, Madam Chair already

confirmed it, but I just want to state for the record

and confirm that you have the two Witness Statements

that you filed in this Arbitration. The first one on

January 14, 2023, and November 1, 2024?

A. That's correct.

Q. Okay. Could you introduce yourself to the

Tribunal and tell them your background and how you're

representing the Canada-Nova Scotia Offshore Petroleum

Board?

THE WITNESS: Yeah, sure. My name is Carl

Makrides. I've been an employee of the Canada-Nova

Scotia Offshore Petroleum Board since 1992, prior to

that I worked for a few years with COGLA, the previous

Federal Regulator. I've held a number of positions at

the Board, starting with a Geological Technologist in

'92 through to a Geologist Petrophysicist role for

about 18 years.

And then in 2013 I moved into the role of

Director, Resources and Rights. I guess in that

capacity I was responsible for managing a team of

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geoscientists and engineers, responsible for the

management --

(Inaudible Zoom audio.)

(Interruption.)

PRESIDENT WALLGREN-LINDHOLM: Mr. Makrides,

I'm sorry. I think that I shall need to ask you to

slow down just a little bit for the Court Reporter.

Thank you very much.

(Overlapping speakers.)

THE WITNESS: I'm sorry. Apologize.

Yeah, would you like me to start again?

(Interruption.)

THE WITNESS: Sure. So from 2013 I was

responsible for managing a team of geoscientists and

engineers responsible for resource conservation,

offshore Nova Scotia, and I was also the Chief