Summary

Source: icsid.worldbank.org

1. INTRODUCTION

1. The Claimant submits this Post-Hearing Brief ("PHB") in accordance with the Tribunal's directions of 13 January 2026 and addresses herein the Tribunal's questions of 31 December 2025 (the "Tribunal's Questions").1 The Claimant's earlier submissions, including its Opening Statement at the Hearing, all stand.

2. The Hearing confirmed the core issue in this dispute: Symbio, having invested [...] into a major, innovative LNG project, with the support of federal and provincial authorities, fell victim to a breakdown in Canada's constitutional machinery - specifically, in the federal-provincial split of competences and coordination for EAs and approvals. That failure had severe adverse consequences on the EA process to which the GNLQ Project was subjected, and for Symbio.

3. Like all other proponents, GNLQ had been advised throughout the EA process that projects of this nature were, as a matter of course, typically approved, an understanding borne out by experience: no LNG export project had ever been rejected in Canada, and at the provincial level in Québec, over 99 percent of projects subject to an EA process in the last 30 years were approved.

4. It is against all odds that, after nearly seven years of EA process, in July 2021, the Québec Government took it upon itself to reject the GNLQ Project and announce that the Gazoduq Project died with it. Shortly thereafter, in February 2022, the Federal Government seemingly blindly followed suit - rejecting the GNLQ Project on virtually identical grounds. Those grounds could not validly be invoked and those decisions were unlawful.

5. That both levels of Government have discretion to reject or approve industrial projects is no answer in this case. As a matter of law, that discretion is limited to grounds both within their constitutional prerogatives and properly set out in the Québec Minister of Environment's directive and the Agency's guidelines. In this case, the Québec and Federal Governments did not have the discretion to reject the GNLQ Project on the grounds invoked, which were either outside their constitutional powers, or outside the framework set out in the Directive and the Guidelines.

6. Nor can the precautionary principle explain - or now justify - those decisions. That principle was not relied upon as a factor by the MELCC or the Agency in their analyses or conclusions, but simply mentioned in passing in their reports. Nor was it referred to by the Federal and Québec Governments (or Ministers of Environment) in their respective decisions.

The Respondent did not even mention the precautionary principle in its Counter-Memorial in these proceedings. It is at best an afterthought prompted by the erroneous non-disputing party submission filed by the CQDE.

7. In this arbitration, the Claimant is not asking the Tribunal to substitute its own judgment for that of the federal and Québec authorities. Nor is it asking the Tribunal to determine whether the GNLQ Project should have been approved as a matter of policy.

8. Indeed, this case is not about whether Canada is entitled to regulate environmental matters. Canada is entitled to do so, by assessing the environmental impacts of a project of this nature, including on GHG emissions and beluga whales, and possibly deciding that those impacts were not justified.

9. However, international law, including the NAFTA, draws a line between bona fide regulation and conduct that is unfair, arbitrary, discriminatory, lacking in transparency, and does not observe due process. Canada's conduct crossed that line.

10 This case is about the fundamental irregularities that occurred in two uncoordinated EA processes, at the Québec and federal level, to which the GNLQ Project was subjected. Those irregularities, in turn, gave rise to decisions, and reasons on which they were based, that were equally wrong, as outside of the respective authorities' discretionary and constitutional powers.

11. Accordingly, what the Tribunal is asked to conclude is that Canada failed to accord Symbio the MST owed to foreign investors under the NAFTA as well as national treatment, and MFN treatment, in breach of Articles 1105, 1102 and 1103 NAFTA, and that its actions amounted to an unlawful expropriation, or measures tantamount to expropriation, in breach of Article 1110 NAFTA.

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