An Assessment of the Population Impacts of Select Hypothetical Amendments to Section 6 of the Indian Act

Tabling of Stewart Clatworthy's Report: An Assessment of the Population Impacts of Select Hypothetical Amendments to Section 6 of the Indian Act

In summer 2017, Mr. Clatworthy was contracted by the Government of Canada to produce demographic estimates on the number of individuals who would become newly entitled to Indian registration based on various scenarios of amendments to the Indian registration provisions. As a recognized leading demographer on the impacts of Bill C-31 and Bill C-3, and expert witness in both the McIvor and Descheneaux cases, Mr. Clatworthy has developed methods for estimating a newly entitled population that would result from potential legislative amendments to Indian registration.

Mr. Clatworthy's report relies on the only two sources of data available at this time to determine population impacts for registered Indians under the Indian Act. They are the Indian Registration System (Indian Register) and the 2011 National Household Survey. Both sets of data have limitations; therefore, the range of estimated impact varies greatly. The Indian Register was originally compiled from treaty and band lists following the 1951 Indian Act and many individuals who had been removed from these lists prior to that time (and their descendants) cannot be identified using this source. As a result, the estimates based on the Indian Registration System greatly underestimate the demographic impact of the potential amendment.

The 2011 National Household Survey data relies on individuals who self-report on Indian registration, Indigenous ancestry and Indigenous identity, and therefore is sensitive to shifts in self-declaration over time. Estimates based on the 2011 National Household Survey are considerably higher than those generated from the Indian Register. Given the limited value of Indian Register data for individuals who lost status before 1951 and their descendants, census data is the best currently available source of information to estimate the potential impacts of related amendments. However, this is an indicator of how many people self-reported Indigenous ancestry who could potentially apply for Indian registration, and is not necessarily reflective of how many would ultimately be found eligible for Indian registration. These estimates likely overestimate the number of individuals who would successfully obtain Indian status.

On October 25, 2017, Statistics Canada released the 2016 data on Aboriginal peoples. Mr. Clatworthy was contracted by the government to update his estimates using data from the 2016 Census. Although the overall Aboriginal population has grown between 2011 and 2016, Mr. Clatworthy's analysis reveals that the population of non-registered individuals with North American Indian origins has been virtually stable for the same period. The absence of noticeable growth for this population is in part attributable to the implementation of Bill C-3 and the creation of the Qalipu Mi'kmaq First Nation, which have meant that many individuals who were non-registered in 2011 now self-declare as registered Indians.

Mr. Clatworthy's reports are attached for further details on impacts of potential amendments to the registration provisions of the Indian Act.

Prepared for Indigenous and Northern Affairs Canada
by Stewart Clatworthy

Four Directions Project Consultants

September 22, 2017

Table of contents

Summary of Major Findings

Background

In October 2106, the Government of Canada introduced legislation (Bill S-3) proposing several amendments to the Indian Act to address known sex-based inequities in Indian registration highlighted by a recent ruling of the Quebec Superior Court (Descheneaux).

During the legislative review process, several changes to the amendments proposed in Bill S-3 were suggested and other issues were raised that could be addressed in the bill.

One specific issue raised in the Senate of Canada called for Bill S-3 to incorporate an amendment (referred to as 6(1)a All the Way), that would extend registration entitlement under Section 6(1)a to all descendants of registered Indians born prior to April 17, 1985. Some uncertainty continues to exist with respect to the scope of this proposed amendment.

Study Objectives

This report presents estimates of the baseline (2016) and projected longer-term impacts on the population entitled to Indian registration associated with additional amendments that would remove the "1951 cut-off"Note de bas de page 1 and "second generation cut-off"Note de bas de page 2 provisions contained in the 2010 Indian Act. Removal of these provisions would respond to many of the suggested changes to Bill S-3 raised in the review process, including the 6(1)a All the Way amendment proposed in the Senate.

Analyses Based on the Indian Register Data

Using data contained on the Indian Register, population impacts associated with removing the "1951 cut-off" and "second generation cut-off" provisions have been estimated in relation to three issues, including:

  1. "cousins" (i.e. the descendants of women who were removed from the Register pursuant to marriage to non-Indians (Scenario 1);
  2. "other sex-related inequities" (i.e. descendants affected by other sex-related issues including: the "siblings" issue, "double mother" clause, unstated paternity, and enfranchisement due to their mothers' removal from the Register, etc.) (Scenario 2); and
  3. "other non-sex-related issues" (i.e. the extension of 6(1) registration entitlement to descendants of those registered under Section 6(1)d or 6(1)e) (Scenario 3).

A broad interpretation of the proposed 6(1)a All the Way amendment would include the impacts of all three issues (Scenario 4). A narrower interpretation of the proposed 6(1)a All the Way amendment that was limited to sex-related inequity issues would include the combined impacts of issues 1 and 2.

Results of analyses based on the Indian Register are summarized in Table 1a below. Incremental impacts appearing the table are measured in relation to the population entitled to registration under Bill C-3 (the 2010 Indian Act).

Table 1a - Summary of Estimated Changes in Registration Entitlement Associated with Alternative Scenarios Examined With Indian Register Data, Canada, July, 2016
Scenario Issue Examined 2016 Population Entitled to Indian Registration 2016 Incremental Population Entitled to Indian Registration (versus Bill C-3)
-- Fully Adjusted Bill C-3 Population 1,021,634 ---
1 Cousins: Removal of 1951 Cut-Off and Second Generation Cut-Off 1,071,794 50,160Note de bas de page 3
2 Other Sex-Related Inequities: Removal of 1951 Cut-Off and Second Generation Cut-Off 1,055,989 34,355
3 Non-Sex-Related Issues: (Removal of 1951 Cut-Off and Second Generation Cut-Off 1,024,036 2,402
4 (1+2+3) Total 6(1)a All the Way (Removal of 1951 Cut-Off and Second Generation Cut-Off - No exclusions) 1,108,551 86,917
Source: Based on analysis of data contained on the July 2016 Indian Register
Note: Totals may not sum exactly due to rounding error

The Indian Register-based estimate of the incremental population in 2016 that would entitled to registration under the broad interpretation of the 6(1)a All the Way amendment totals 86,917. If applied only to sex-related inequity issues, the Indian Register-based estimate of the incremental population entitled to registration in 2016 totals 84,515 (50,160 (re cousins –Scenario 1) plus 34,355 (other sex-related inequities – Scenario 2)).

Population projections reveal that under all of the scenarios, substantial incremental growth in the population entitled registration would be expected in the future.

Limitations of the Indian Register Analyses

As the Indian Register was originally compiled from treaty or band lists following the 1951 Indian Act, many individuals who had been removed from these lists prior to that time (and their descendants) cannot be identified from the Indian Register. As such, the incremental population entitled to Indian registration derived from data contained on the Indian Register will be under-estimated. The extent of under-estimation can be expected to be large within the context of amendment scenarios which eliminate the "1951 cut-off" for eligibility.

Estimates of Population Impacts of "6(1)a All the Way" Based on 2011 National Household Survey Data

The proposed "6(1)a All the Way" amendment, if interpreted broadly, would extend registration entitlement under Section 6(1) to all individuals (born prior to April 17, 1985) who could trace their ancestry to at least one person who is or ever was entitled to be a registered Indian on or before April 17, 1985. Such a person (i.e. the ancestor) could be a parent, a grand-parent, a great-grand parent, a great-great-grandparent, etc.

Estimates based on the 2011 National Household Survey are likely to provide a more complete picture of the potential population that could become eligible for registration under a broad interpretation of the 6(1) All the Way scenario.

Analyses of the population impacts of the proposed "6(1)a All the Way" amendment based on the 2011 National Household Survey explore three scenarios.

  • NHS Scenario 1 includes the population reporting Indian registration and the population that reported North American Indian ethnic origins (single or multiple responses) but not Indian registration.
  • NHS Scenario 2 includes the NHS Scenario 1 population, as well as the non-registered population that reported Métis ethnic origins (single or multiple responses).
  • NHS Scenario 3 also includes additional individuals who reported North American Indian and/or Métis identity, but who did not report Aboriginal ethnic origins or Indian registration.

Application of the hypothetical 6(1)a All the Way remedy to the NHS Scenario 1 population (i.e. Registered Indians and those reporting North American Indian ethnic origins) would increase the total population entitled to registration to 1,494,384, an incremental increase of 743,764 (or 99.0%).

If one assumes that the population reporting Métis ethnic origins was also eligible for the remedy (NHS Scenario 2), the total population entitled to registration would rise to 1,873,307, an incremental increase of 1,122,238 (or 148.1%).

If one further assumes that the remedy could also apply to those who report North American and/or Métis identity (but not ethnic origins) (NHS Scenario 3), the total eligible population would rise further to 1,992,322, an incremental increase of 1,241,252 (or 165.3%).

Under all three of the NHS scenarios, the vast majority (close to 99%) of the estimated incremental population that could become entitled to registration under the 6(1)a All the Way provision resides off-reserve.

Limitations of the NHS Estimates

Estimates based on the 2011 National Household Survey are considerably (roughly 10-12 times) higher than those generated from the Indian Register. Nevertheless, the 2011 NHS was a voluntary survey and appears to have experienced higher rates of non-response in lower income areas off reserve.

Furthermore, the survey did not attempt to include individuals residing outside of Canada or those in institutional and collective living arrangements.

As such, analyses based on the 2011 NHS may also yield under-estimates of potential population impacts associated with a broad interpretation of the 6(1)a All the Way amendment.

The 2011 data are also somewhat out of date. More current estimates from the soon to be released 2016 NHS are likely to yield a larger Aboriginal population based on ethnic origins and identity and as such even larger estimates of the population entitled to registration under the proposed amendment.

Limitations of Further Research on the Issue

There does not appear to be any viable option for refining the estimates of the potential population impacts of removing the 1951 cut-off provision or the proposed 6(1)a All the Way amendment.

As part of this study, consideration was also given to alternative analytical approaches using other historic administrative data (e.g. treaty and annuity payment lists) in an attempt to identify the size of the Indian population that existed at some earlier point(s) in time that could serves as a baseline for projecting the descendant population. Two significant difficulties exist in this regard. First, the treaty and annuity payment lists also fail to provide complete information concerning the population of interest and as such provide a weak basis for estimating the total Indian population for time periods prior to 1951. Secondly, even if one could generate an accurate Indian population estimate for an earlier time period (for example circa 1870), our understanding of the key demographic parameters that determine population growth (i.e. fertility and mortality) among Aboriginal populations are woefully inadequate for pre-WWII time periods and would not support the construction of plausible estimates of the projected number of descendants that might qualify under the proposed amendment scenarios.

List of tables

List of Figures

Background

In October, 2016, the Government of Canada introduced a package of legislative amendments to the Indian Act in Parliament through Bill S-3. These amendments were intended to address known gender-based inequities in Indian registration highlighted by a recent ruling of the Quebec Superior Court (Descheneaux). During the study of Bill S-3, several individuals/organizations raised issues with the proposed amendments and brought forward other issues that could be addressed in the bill. Following a recommendation made by the Senate, in January, 2017, a five-month extension was granted by the court (until July 3, 2017) to allow the Government to further assess Bill S-3, to confirm that the proposed amendments provide the appropriate remedies for the situations found in the Descheneaux case, and to ensure that the bill addresses other known gender-based inequities in Indian registration.

Some initial research conducted previously for Indigenous and Northern Affairs Canada (INAC) during the process of formulating Bill S-3 provided estimates of the short and longer-term population impacts associated with addressing three specific issues of "perceived" gender discrimination. These issues were central to several of the amendments proposed in Bill S-3 and included:

In response to information and advice received during the legislative review process, INAC has identified a number of additional issues and topics that require further demographic research.

Scope of the Research

This report presents estimates of the baseline (2016) impacts on the population entitled to Indian registration associated with amendments to the Indian Act that would remove the "1951 cut-off" and "second generation cut-off" provisions contained in the 2010 Indian Act. The "1951 cut-off" provision contained in the 2010 Indian Act and proposed in the original version of Bill S-3, requires individuals to be born on or after the date of the 1951 Indian Act (or to have a sibling born on or after that date) in order to qualify for remedy (i.e. entitlement under 6(1)). The "second generation cut-off" provision refers to the loss of registration entitlement for descendants of the second successive generation of inter-marriage (i.e. parenting between Indians and non-Indians). Bill S-3 proposed the removal of the second generation cut-off provision contained in the 2010 Indian Act, by extending entitlement under Section 6(1) to the grand-children of women who lost status through marriage to a non-Indian. For purposes of this study, removal of the "second generation cut-off" is assumed to mean that entitlement under Section 6(1) would be extended to all descendants (great-grandchildren, great-great grandchildren, etc) provided they were born prior to April 17, 1985 or have a sibling born prior to that date.

The population impacts associated with the proposed amendments to the "1951 cut-off" and "second generation cut-off" provisions discussed above are examined in relation to three issues. These issues include:

  1. "cousins" (i.e. the descendants of women who where removed from the Register pursuant to marriage to non-Indians;
  2. "other sex-related inequities" (i.e. descendants affected by other sex-related issues including: the "siblings" issue, "double mother" clause, unstated paternity, and enfranchisement due to their mothers' removal from the Register, etc.); and
  3. "other non-sex-related issues" (i.e. the extension of 6(1) registration entitlement to descendants of those registered under Section 6(1)d or 6(1)e).

Collectively, these three issues address the registration entitlement of all individuals born prior to April 17, 1985, who are (or were prior to death) registered under Section 6(2) of the Indian Act and their descendants.

The "6(1)a All the Way" Amendment and Its Relationship to Scenarios Addressed Using the Indian Register Data

As a result of deliberations undertaken by the Senate of Canada, it was proposed that Bill S-3 incorporate an amendment referred to as "6(1) All the Way". The proposed amendment would grant entitlement under:

Based on preliminary discussions with INAC staff involved in the Bill S-3 legislative process, it is not entirely clear as to how the proposed amendment should be interpreted. The proposed amendment, for example, makes specific reference to "persons referred to in paragraph 11(1) a to f of the pre-1985 Indian Act". Section 11 of the pre-1985 Indian Act essentially described all those persons who were entitled to Indian registration. These individuals were subsequently assigned registration entitlement under Section 6(1)(a) of the 1985 Indian Act. A strict (narrow) interpretation of the proposed amendment would suggest that it would have little or no incremental effect on the population entitled to Indian registration.

The clarifying paragraph (a.2) identifies sex equality objectives as the underlying basis for the proposed amendment. An interpretation of the proposed amendment which limited the "6(1)a All the Way" remedy to issues of sex equality in registration entitlement seems consistent with the overall intent of Bill S-3. With respect to the analyses conducted for this study, this interpretation is captured by issues 1 and 2 (i.e. the "cousins" and "other sex-related inequities" issues, collectively).

Alternative interpretations of the proposed amendment exist. For example, Section 11 of the pre-1985 Indian Act was not intended to be interpreted in isolation from other provisions of the Indian Act, most notably Section 12 which described those persons who were not entitled to registration, as well as those who could be removed from the Indian Register. The proposed 6(1)(a) All the Way amendment might, therefore, be interpreted to mean that entitlement under Section 6(1)(a) should be awarded to all those who were omitted or removed from the Register due the provisions of Section 12. A broad interpretation of the amendment could be viewed as extending the "6(1)a All the Way" remedy to all individuals born prior to April 17, 1985 who descended from a band member/registered Indian.

Within the context of analysis based on the Indian Register data undertaken for this study, this broad scenario (which is referred to as Scenario 4: 6(1)a All the Way) would upgrade the registration entitlement of all 6(2) registrants (and their descendants) born prior to April 17, 1985 (and those born on or after that date who have siblings born prior to that date) to Section 6(1). This scenario reflects the sum of the impacts associated with the "cousins", "other gender-related inequities", and "other non-gender-related" issues). Table 1 provides a summary of the four hypothetical amendment scenarios addressed within the context of the Indian Register data.

Table 1: Hypothetical Amendment Scenarios Addressed In Research Based on Indian Register Data
Scenario Issue
1 Cousins: Removal of 1951 Cut-Off and Second Generation Cut-Off
2 Other Gender-Related Inequities: Removal of 1951 Cut-Off and Second Generation Cut-Off
3 Non-Gender-Related Issues: (Removal of 1951 Cut-Off and Second Generation Cut-Off
4 (1 + 2 + 3) Total 6(1)a All the Way (Removal of 1951 Cut-Off and Second Generation Cut-Off - No exclusions)

Limitations of Estimates Based on the Indian Register

While estimates of the population changes associated with the four scenarios identified above can be made from data contained on the Indian Register, these

estimates will not capture the entire population that could become entitled to registration under the hypothetical amendments. As the Indian Register was originally compiled from treaty or band lists following the 1951 Indian Act, individuals who had been removed from these lists prior to that time (and their descendants) were not contained on the initial Indian Register. While many of these individuals (and some of their descendants) may have become entitled to reinstatement or registration pursuant to the 1985 and 2010 Indian Act amendments, the Indian Register includes only those individuals who were alive and applied for reinstatement or registration. An unknown, but potentially quite large, number of individuals who would have been entitled to reinstatement or registration under the terms of the 1985 and 2010 Indian Acts are likely to have died prior to the amendments and do not appear on the Indian Register. In the absence of information concerning these individuals, it is not possible to construct estimates of the number of their descendants. Given this situation, the incremental population entitled to Indian registration derived from data contained on the Indian Register will be under-estimated, especially within the context of amendment scenarios which eliminate the "1951 cut-off" for eligibility.

Estimated Baseline (2016) and Longer-Term Impacts of Hypothetical Scenarios Based on the Indian Register

Scenario 1: "Cousins": No 1951 or Second Generation Cut-Off

As noted previously in this report, prior research conducted during the formulation of Bill S-3 provided estimates of the baseline (2016) and projected impacts on the population entitled to Indian registration associated with specific amendments concerning the "Cousins" issue. These amendments, however, retained the 1951 timing requirement contained in Bill C-3 (the 2010 Indian Act) for descendants of women who lost registration through marriage to a non-Indian to qualify for a registration upgrade to 6(1)c.1. The upgrade did not apply to those descendants born prior to the 1951 cut-off.Note de bas de page 4

The revised remedy considered in this study concerning "Cousins" (Scenario 1) would also extend eligibility under Section 6(1) to all descendants of women who lost registration through marriage to a non-Indian male and who were born prior to April 17, 1985 or had a sibling born prior to that date. The remedy in effect removes the provision contained in the 2010 Indian Act concerning the 1951 cut-off for all descendants of women who lost registration through marriage to non-Indians. The revised cousins scenario examined in this study includes the population identified in the earlier Bill S-3 study (estimated to be 25,588 in 2016), as well as the additional population that would become entitled pursuant to the removal of the 1951 cut-off.

Baseline (2016) Impacts of Scenario 1

Estimates of the baseline (2016) population potentially affected by the revised "cousins" remedy were developed using the same methodology and procedures used in the earlier research.Note de bas de page 5 The methodology involves two stages, including:

  • the application of age-specific child-parent ratios to generate estimates of the 1st, 2nd and if applicable 3rd generation of non-entitled descendants of children born to women who lost registration pursuant to marriage to the non-Indian;
  • the application of age-cohort specific probabilities which reflect the likelihood that a descendant born after the April 16, 1985 cut-off has a sibling born on or before that date to the populations of descendants.

As with the prior analysis of the "Cousins" issue (see footnote 3), the estimates were developed for each INAC region and for the populations residing on and off reserve.

Baseline impact estimates associated with the revised "Cousins" remedy (Scenario 1) are summarized in Table 2. Incremental impacts reported in the table reflect changes attributable to the hypothetical amendment in relation to the fully adjusted population entitled under Bill C-3.

As revealed in the table, the revised remedy would result in an estimated increase of 50,160 individuals to the population entitled to registration as of July 2016, including 1,145 on reserve and 49,015 off reserve.Footnote 6 The remedy would also have the impact of increasing the share of the registered population entitled under Section 6(1). This increase in the concentration of individuals entitled to registration under Section 6(1) would be most pronounced off reserve and among older cohorts.

Estimated Longer Term Impacts of Scenario 1

Custom projection models were developed for this study to explore the longer-term population impacts of the various scenarios addressed within the context of the Indian Register data. One projection model estimates the future population entitled to Indian registration assuming that the provisions of Bill C-31 (i.e. the 2010 Indian Act) remain unchanged and in force throughout the 75-year projection period (2016-2091). A second model, using identical parameters (for fertility, mortality, migration and exogamous parenting rates), explores the population entitled to Indian registration assuming that the provisions of Scenario 1 are applied to the baseline (2016) population.Footnote 7 Incremental impacts associated with Scenario 1 are estimated as the difference between the results generated by the two models.

Table 2: Estimated Changes in Registration Entitlement Resulting from Application of the Remedy to Scenario 1: Cousins (Removal of 1951 Cut-Off and Second Generation Cut-Off), Canada, July, 2016

Bill C-31 Status Quo
Section 6 Entitlement On Off Total
Total Entitled 512,943 508,691 1,021,634
6(1) 423,369 295,845 719,214
6(2) 89,574 212,846 302,420
Not Entitled 13,805 118,270 132,075
Scenario 1: Cousins (Removal of 1951 Cut-Off and Second Generation Cut-Off)
Section 6 Entitlement On Off Total
Total Entitled 514,088 557,706 1,071,794
6(1) 424,951 346,798 771,749
6(2) 89,137 210,908 300,045
Not Entitled 12,660 69,255 81,914
Baseline Changes in Entitlement
Section 6 Entitlement On Off Total
Total Entitled 1,145 49,015 50,160
6(1) 1,582 50,953 52,535
6(2) -437 -1,938 -2,375
Not Entitled -1,145 -49,015 -50,160
Source: Based on analysis of data contained on the July 2016 Indian Register
Note: Totals may not sum exactly due to rounding error

Figure 1 presents estimates of the projected incremental population entitled to Indian registration under Scenario 1. The table reveals that the incremental population entitled to registration under Scenario 1 (in relation to Bill C-3) is expected to increase over the initial 15 years of the projection period reaching a maximum of roughly 56,340 individuals. Thereafter, the size of the incremental population entitled to registration would decline. After 75 years, however, the entitled population under Scenario 1 would remain roughly 39,315 individuals larger than that projected under Bill C-3. The figure also reveals that the vast majority of the incremental population is projected to reside off reserve throughout the projection period.

Figure 1 Incremental Population Entitled to Indian Registration under Scenario 1 (versus Bill C-3), by Location of Residence, Canada, 2016-2091 (Projected)

Source: Population projections based on the 2016 Indian Register.
After 20 years, the projections assume that no further registrations will occur under the 1985 provisions.

Description of Figure 1

Figure 1 is a line graph demonstrating population projections based on the 2016 Indian register. Figure 1 shows the incremental change in the population entitled to Indian registration for on-reserve, off-reserve and total number of individuals under scenario 1 from 2016 to 2091.

The graph shows on-reserve numbers remain relatively constant:

  • 1,145 individuals on-reserve entitled to Indian registration in 2016
  • 1,247 individuals on-reserve entitled to Indian registration in 2041
  • 1,150 individuals on-reserve entitled to Indian registration in 2066
  • 1,023 individuals on-reserve entitled to Indian registration in 2091

The off-reserve numbers increase slightly, then decline:

  • 49,015 individuals off-reserve entitled to Indian registration in 2016
  • 53,241 individuals off-reserve entitled to Indian registration in 2041
  • 48,177 individuals off-reserve entitled to Indian registration in 2066
  • 38,292 individuals off-reserve entitled to Indian registration in 2091

This results in total numbers showing the same slight increase and then decline:

  • 49,015 total individuals entitled to Indian registration in 2016
  • 53,241 total individuals entitled to Indian registration in 2041
  • 48,177 total individuals entitled to Indian registration in 2066
  • 38,292 total individuals entitled to Indian registration in 2091

Scenario 2: Other Sex-Related Inequities (Removal of 1951 Cut-Off and Second Generation Cut-Off)

The second scenario addressed in this study focuses on the population presently registered under Section 6(2) (and their descendants) who are affected by one of several sex-specific provisions of pre-1985 Indian Acts (excluding the "cousins" issue). These provisions relate to the siblings' issue, unstated paternity, the "double mother" clause, and children enfranchised pursuant to their mothers' removal from the Register as a consequence of marriage to a non-Indian. As in the case of the hypothetical "Cousins" scenario, descendants affected by one of the "other sex-related inequity" issues would be entitled to registration under Section 6(1) provided that they were born prior to April 17, 1985 or have a sibling born prior to that date.

Baseline (2016) Impacts of Scenario 2

The baseline (2016) population impacts associated with this scenario were estimated indirectly (as a residual) by subtracting the incremental impacts associated with Scenario 1 (Cousins) and Scenario 3 (non- sex-related issues) from the incremental impact of Scenario 4 (6(1a All the Way)). Footnote 8 Table 3 provides a summary of the estimated baseline impacts associated with Scenario 2. As of July, 2016, this scenario would result in an increase to the population entitled to registration of 34,355, including 7,473 on reserve and 26,883 off reserve, as well asn a considerable shift in the composition of the population to those entitled under Section 6(1). As the digital version of the Register is missing data concerning the parent(s) of some individuals registered under Section 6(2), it is not always possible to determine the precise basis for assigning registration under Section 6(2). As such, it is possible that some portion of the residual population may be registered under Section 6(2) as a result of provisions which do not involve sex inequity.

Table 3: Estimated Changes in Registration Entitlement Resulting from Application of the Remedy to Scenario 2: Other Sex-Related Inequities (Removal of 1951 Cut-Off and Second Generation Cut-Off), Canada, July, 2016

Bill C-31 Status Quo
Section 6 Entitlement On Off Total
Total Entitled 512,943 508,691 1,021,634
6(1) 423,369 295,845 719,214
6(2) 89,574 212,846 302,420
Not Entitled 13,805 118,270 132,075
Scenario 2: Other Sex-Related Inequities (Removal of 1951 Cut-Off and Second Generation Cut-Off)
Section 6 Entitlement On Off Total
Total Entitled 520,416 535,573 1,055,989
6(1) 443,272 353,448 796,720
6(2) 77,144 182,125 259,269
Not Entitled 6,332 91,387 97,720
Baseline Changes in Entitlement
Section 6 Entitlement On Off Total
Total Entitled 7,473 26,883 34,355
6(1) 19,903 57,603 77,506
6(2) -12,431 -30,720 -43,151
Not Entitled -7,473 -26,883 -34,355
Source: Based on analysis of data contained on the July 2016 Indian Register
Note: Totals may not sum exactly due to rounding error

Estimated Longer-Term Impacts of Scenario 2

A similar projection approach was used to estimate the incremental population entitled to Indian registration under Scenario 2. The incremental population reflects changes in relation to situation projected under Bill C-3. Figure 2 presents estimates of the incremental population entitled to registration under the hypothetical Scenario 2 amendment. As revealed in the figure the additional population entitled to registration is projected to rise for roughly 65 years from about 34,355 in 2016 to about 92,240 individuals in year 2081. The increase over time in the size of the incremental population entitled to registration under this scenario is projected to occur both on and off reserve. Most (about 75%) of the incremental impact, however, is expected to occur off reserve.

Figure 2 - Incremental Population Entitled to Indian Registration under Scenario 2 (versus Bill C-3), by Location of Residence, Canada, 2016-2091 (Projected)

Source: Population projections based on the 2016 Indian Register.

Description of Figure 2

Figure 2 is a line graph demonstrating population projections based on the 2016 Indian register. Figure 1 shows the incremental change in the population entitled to Indian registration for on-reserve, off-reserve and total number of individuals under scenario 2 from 2016 to 2091.

The graph shows on-reserve numbers that increase moderately:

  • 7,473 individuals on-reserve entitled to Indian registration in 2016
  • 14,053 individuals on-reserve entitled to Indian registration in 2041
  • 18,072 individuals on-reserve entitled to Indian registration in 2066
  • 18,806 individuals on-reserve entitled to Indian registration in 2091

The off-reserve numbers increase significantly:

  • 26,883 individuals off-reserve entitled to Indian registration in 2016
  • 56,223 individuals off-reserve entitled to Indian registration in 2041
  • 68,877 individuals off-reserve entitled to Indian registration in 2066
  • 71,036 individuals off-reserve entitled to Indian registration in 2091

This results in total numbers showing the same significant increases:

  • 34,356 total individuals entitled to Indian registration in 2016
  • 70,276 total individuals entitled to Indian registration in 2041
  • 86,949 total individuals entitled to Indian registration in 2066
  • 89,842 total individuals entitled to Indian registration in 2091

Scenario 3: Non-Sex-Related Issues (Removal of 1951 Cut-Off and Second Generation Cut-Off)

As discussed previously, a broad interpretation of the 6(1)a All the Way remedy could imply extending registration upgrades to Section 6(1) to descendants of other individuals who were removed from the Register as a consequence of provisions contained in pre-1985 Indian Acts which (on the surface at least) do not appear to have sex biases. Most of these are believed to be descendants of those registered under Section 6(1)d and 6(1)e (i.e. descendants of "voluntary enfranchisements, individuals who were removed from the Register for joining the military, clergy, or a profession, and those who resided outside of Canada for five years). As several of these provisions were removed from the Indian Act many decades ago, the surviving populations (as identified on the Register) tend to be relatively small and older.Footnote 9 Under Scenario 3, descendants of those registered under Section 6(1)d or 6(1)e would become entitled to registration under Section 6(1) if they were born prior to April 17, 1985 or if they have a sibling born prior to that date.

Baseline (2016) Impacts of Scenario 3

Based on analysis of the July 2016 Indian Register, the surviving descendants of individuals registered under Section 6(1)d or 6(1)e were estimated to total 7,483 in July 2016, including 4,394 registered under Section 6(2), and 3,089 not entitled to registration. Applying the hypothetical remedy to this population resulted in an increase of 5,063 individuals entitled under Section 6(1), including 4,132 currently registered under Section 6(2) and 930 currently not entitled, as well as 1,472 currently non-entitled individuals becoming entitled under Section 6(2). Table 4 provides a summary of the net effects on the population entitled to registration associated with this remedy. As revealed in the table the remedy would result in an increase in the total population entitled to registration of 2,402 individuals, including 54 on reserve and 2,348 off reserve.

Estimated Longer-Term Impacts of Scenario 3

Results of the custom projection models developed to estimate the incremental population impacts of Scenario 3 are presented in Figure 3. The projection results suggest that the size of the incremental population under this scenario would increase gradually over the initial 50 years of the projection period, reaching a maximum of roughly 3,685. Although increases in the size of incremental population are projected both on and off reserve, a very large majority of the impact would occur off reserve.

Table 4: Estimated Changes in Registration Entitlement Resulting from Application of the Remedy to Scenario 3: Non-Sex-Related Issues (Removal of 1951 Cut-Off and Second Generation Cut-Off), Canada, July, 2016

Bill C-31 Status Quo
Section 6 Entitlement On Off Total
Total Entitled 512,943 508,691 1,021,634
6(1) 423,369 295,845 719,214
6(2) 89,574 212,846 302,420
Not Entitled 13,805 118,270 132,075
Scenario 3: Non-Sex-Related Issues (Removal of 1951 Cut-Off and Second Generation Cut-Off)
Section 6 Entitlement On Off Total
Total Entitled 512,997 511,039 1,024,036
6(1) 423,678 300,598 724,276
6(2) 89,318 210,441 299,759
Not Entitled 13,751 115,922 129,673
Baseline Changes in Entitlement
Section 6 Entitlement On Off Total
Total Entitled 54 2,348 2,402
6(1) 310 4,753 5,063
6(2) -256 -2,405 -2,661
Not Entitled -54 -2,348 -2,402
Source: Based on analysis of data contained on the July 2016 Indian Register
Note: Totals may not sum exactly due to rounding error
Figure 3 Incremental Population Entitled to Indian Registration under Scenario 3 (versus Bill C-3), by Location of Residence, Canada, 2016-2091 (Projected)

Source: Population projections based on the 2016 Indian Register.

Description of Figure 3

Figure 3 is a line graph demonstrating population projections based on the 2016 Indian register showing the incremental change in the population entitled to Indian registration for on-reserve, off-reserve and total number of individuals under scenario 3 from 2016 to 2091.

The graph shows on-reserve numbers that remain relatively constant:

  • 54 individuals on-reserve entitled to Indian registration in 2016
  • 78 individuals on-reserve entitled to Indian registration in 2041
  • 92 individuals on-reserve entitled to Indian registration in 2066
  • 76 individuals on-reserve entitled to Indian registration in 2091

The off-reserve numbers increase slightly then decline:

  • 2,348 individuals off-reserve entitled to Indian registration in 2016
  • 3,279 individuals off-reserve entitled to Indian registration in 2041
  • 3,584 individuals off-reserve entitled to Indian registration in 2066
  • 2,850 individuals off-reserve entitled to Indian registration in 2091

This results in total numbers showing the same slight increase and then decline:

  • 2,402 individuals on-reserve entitled to Indian registration in 2016
  • 3,356 individuals on-reserve entitled to Indian registration in 2041
  • 3,676 individuals on-reserve entitled to Indian registration in 2066
  • 2,926 individuals on-reserve entitled to Indian registration in 2091

Scenario 4: 6(1)a All the Way (Removal of 1951 Cut-Off and Second Generation Cut-Off – No Exclusions)

As discussed previously, the fourth scenario addressed in this study within the context of the Indian Register data examines the impacts on the population entitled to Indian registration of assigning entitlement under Section 6(1) to all descendants of registered Indians provided they were born prior to April 17, 1985 or have a sibling born prior to that date. Research conducted for earlier Bill S-3 research concerning the "Cousins" issue provided an estimate of the fully adjusted 2016 population (both registered and non-entitled descendants).Footnote 10 The proposed 6(1)a All the Way remedy was applied to this population.

Baseline (2016) Impacts of Scenario 3

Results of the analysis are presented in Table 5. As revealed in the table, the 6(1)a All the Way scenario is estimated to result in an increase in the total population entitled to registration of 86,917 individuals including 8,671 on reserve and 78,246 off reserve. Composition of the population entitled to registration would also shift markedly in favour of those entitled under Section 6(1), especially off-reserve.

Table 5: Estimated Changes in Registration Entitlement Resulting from Application of the Remedy to Scenario 4: 6(1)a All the Way (Removal of 1951 Cut-Off and Second Generation Cut-Off – No Exclusions), Canada, July, 2016

Bill C-31 Status Quo
Section 6 Entitlement On Off Total
Total Entitled 512,943 508,691 1,021,634
6(1) 423,369 295,845 719,214
6(2) 89,574 212,846 302,420
Not Entitled 13,805 118,270 132,075
Scenario 4: 6(1)a All the Way (Removal of 1951 Cut-Off and Second Generation Cut-Off - No exclusions)
Section 6 Entitlement On Off Total
Total Entitled 521,614 586,937 1,108,551
6(1) 445,164 409,154 854,318
6(2) 76,450 177,783 254,233
Not Entitled 5,134 40,024 45,158
Baseline Changes in Entitlement
Section 6 Entitlement On Off Total
Total Entitled 8,671 78,246 86,917
6(1) 21,795 113,309 135,104
6(2) -13,124 -35,063 -48,187
Not Entitled -8,671 -78,246 -86,917
Source: Based on analysis of data contained on the July 2016 Indian Register
Note: Totals may not sum exactly due to rounding error

Estimated Longer-Term Impacts of Scenario 4

Figure 4 presents the results of custom projection models designed to isolate the incremental population entitled to Indian registration under Scenario 4. The figure reveals that the incremental impact associated with this scenario would increase gradually over the initial 55 years of the projection period reaching roughly 141,075 in year 2071. The increasing size of the incremental population entitled to registration is projected to occur both on and reserve.

Figure 4 - Incremental Population Entitled to Indian Registration under Scenario 4 (versus Bill C-3), by Location of Residence, Canada, 2016-2091 (Projected)

Source: Population projections based on the 2016 Indian Register.

Description of Figure 4

Figure 4 is a line graph demonstrating population projections based on the 2016 Indian register showing the incremental change in the population entitled to Indian registration for on-reserve, off-reserve and total number of individuals under scenario 4 from 2016 to 2091.

The graph shows on-reserve numbers that increase moderately:

  • 8,671 individuals on-reserve entitled to Indian registration in 2016
  • 15,377 individuals on-reserve entitled to Indian registration in 2041
  • 19,314 individuals on-reserve entitled to Indian registration in 2066
  • 19,505 individuals on-reserve entitled to Indian registration in 2091

The off-reserve numbers increase then decline:

  • 78,246 individuals off-reserve entitled to Indian registration in 2016
  • 112,743 individuals off-reserve entitled to Indian registration in 2041
  • 120,639 individuals off-reserve entitled to Indian registration in 2066
  • 112,178 individuals off-reserve entitled to Indian registration in 2091

This results in total numbers showing the same increase then decline:

  • 86,917 individuals on-reserve entitled to Indian registration in 2016
  • 128,120 individuals on-reserve entitled to Indian registration in 2041
  • 139,952 individuals on-reserve entitled to Indian registration in 2066
  • 132,083 individuals on-reserve entitled to Indian registration in 2091

Summary of Results of Scenarios Examined With Indian Register Data

Results of the analyses for all four of the scenarios examined within the context of Indian Register data are summarized in Table 6. The results suggest that elimination of the 1951 and second generation cut-off would have the largest short-term impact on the population entitled to registration within the context of sex-inequity issues (Scenarios 1 and 2), especially the "Cousins" issue (Scenario 1). The short-term impact of the hypothetical amendments is expected to be relatively small if applied to the population affected by non-sex related issues (Scenario 3).

Projection models suggest that the incremental impacts under all of the scenarios examined would be expected to grow over time. This growth would be most pronounced under Scenarios 2 and 4.

Table 6: Summary of Estimated Changes in Registration Entitlement Associated with Alternative Scenarios Examined With Indian Register Data, Canada, July, 2016
Scenario Issue Examined 2016 Population Entitled to Indian Registration 2016 Incremental Population Entitled to Indian Registration (vs Bill C-3)
-- Fully Adjusted Bill C-3 Population 1,021,634 ---
1 Cousins: Removal of 1951 Cut-Off and Second Generation Cut-Off 1,071,794 50,160
2 Other Sex-Related Inequities: Removal of 1951 Cut-Off and Second Generation Cut-Off 1,055,989 34,355
3 Non-Sex-Related Issues: (Removal of 1951 Cut-Off and Second Generation Cut-Off 1,024,036 2,402
4 (1+2+3) Total 6(1)a All the Way (Removal of 1951 Cut-Off and Second Generation Cut-Off - No exclusions) 1,108,551 86,917
Source: Based on analysis of data contained on the July 2016 Indian Register
Note: Totals may not sum exactly due to rounding error

Readers are reminded that because of the properties of the Indian Register, impact analyses based on this data source will under-estimate the true extent of potential impacts under all of the scenarios. The extent of the under-estimation may be considerable.

Comparison of Current Results with Those of Prior Research

Only one the scenarios examined in this study was addressed in prior research based on the Indian Register data. Scenario 4 of the current study was examined in research conducted for the Descheneaux litigation and submitted to the Quebec Superior Court in the form of an opinion report prepared by Four Directions Project Consultants. The specific scenario addressed in that research focused on the question posed below:

What would the total incremental growth in the population entitled to Indian registration be if section 6(1)(a) of the 1985 Indian Act was amended by adding the following words "or was born prior to April 17, 1985, and was a direct descendant of such a person"? …………….

b) The scenario where there are no limits for the requirements to be alive for "such a person".

The scenario addressed in the Descheneaux research was examined within the context of the 2009 Indian Register data. Results of that research projected the incremental impact of the remedy on the population entitled to registration to be approximately 55,400 individuals in 2016 (about 31,520 lower than the estimated 86,917 in the current study). The higher estimate identified in this current study results primarily from its inclusion of the "siblings" provision whereby eligibility for the remedy is extended to children born after April 17, 1985 in situations where they have a qualifying sibling born prior to that date. This provision results in the remedy becoming available to approximately 20% of the population born after April 16, 1985. Research reported in the Descheneaux study did not include the "siblings" provision (as the question posed did not include this provision), and as such yielded significantly lower impact estimates.

Estimates of Potential Population Impacts of 6(1)a All the Way Based on 2011 National Household Survey Data

As discussed previously, the proposed 6(1)a All the Way amendment, if interpreted broadly, would extend registration entitlement under Section 6(1) to all individuals who could trace their ancestry to at least one person who is or was ever entitled to be a registered Indian on or before April 17, 1985. Such a person (i.e. the ancestor) could be a parent, a grand-parent, a great-grand parent, a great-great-grandparent, etc. Estimates of the potential population impact associated with this scenario that are based on the National Household Survey data derive from this assumption. The 2011 National Household Survey allows for identification of the Aboriginal population using several concepts, including: ethnic origins (North American Indian, Métis and Inuit), Aboriginal identity (i.e. self-affiliation with an Aboriginal group (North American Indian, Métis, and Inuit)), Indian registration and band/first nations membership. For purposes of this study, the populations of interest include: those who reported Aboriginal ethnic origins (North American Indian and/or Métis); those who reported Aboriginal identity (North American Indian and/or Métis); and all those who reported Indian registration.

In preparing estimates from the 2011 National Household Survey three scenarios have been developed. The initial scenario (NHS Scenario 1) includes the population reporting Indian registration and the population that reported North American Indian ethnic origins (single or multiple responses) but not Indian registration. A second scenario (NHS Scenario 2) includes the NHS Scenario 1 population, as well as the non-registered population that reported Métis ethnic origins (single or multiple responses). A final scenario (NHS Scenario 3) also includes additional individuals who reported North American Indian and/or Métis identity, but who did not report Aboriginal ethnic origins or Indian registration.

When interpreting estimates of the population derived from the 2011 National Household Survey, it is important to recognize the limitations associated with this data source. As the National Household Survey is conducted among residents of Canada, data are unavailable for the Aboriginal population residing outside of Canada.Footnote 11 The National Household Survey also does not capture data on residents of institutions (e.g. prison, health care facilities), group homes and other collective dwellings. The size and characteristics of the Aboriginal population residing in these forms of accommodation remain unknown. Published data from the Census and National Household Survey are also subject to error through both non-enumeration and survey under-coverage. In 2011, the populations of 31 Indian reserves or settlements were either not surveyed or incompletely surveyed. According to Statistics Canada's analyses, the population residing on the 31 Indian reserves that were not completely enumerated in 2011 numbered about 37,390.

Some people in areas which were fully surveyed in 2011 are also missed (known as survey under-coverage). The true extent of net under-coverage for the Aboriginal population in 2011 (as in earlier time periods) is unknown. Statistics Canada does, however, provide estimates of the size and demographic characteristics (e.g. age, gender and marital status) of people missed using the reverse record check (RRC) procedure. Although the RRC is applied both on and off reserves, the ethnic origins and identity of those who were missed are not reported. Results of the RRC for 2011 suggest that about 2.2% of the population (nationally) was not counted (net under-coverage) in the census or NHS.

In light of the extent of non-enumeration and under-coverage, NHS data used in this study to estimate the size of the qualifying population have been adjusted on the basis of the results the RRC and Statistics Canada's estimates for the population residing on incompletely enumerated Indian reserves and settlements.

Custom tabulations prepared from the 2011 National Household Survey were used to identify the populations reporting Aboriginal Identity, ethnic origins and Indian registration by age, province/region and gender. Data were extracted from these tabulations for the populations reporting Indian registration, North American Indian or Métis identity and/or ethnic origins, and adjusted for the population residing on incompletely enumerated Indian reserves and net survey under-coverage as reported by Statistics Canada. No adjustments to the NHS data were, however, made for the population residing outside of Canada and the population residing in collective dwellings and institutional settings.

Data extracted from the custom tabulations were organized by 5-year age cohorts making it possible to apply the siblings' provision to those born after the 1985 Indian Act. The probability estimates of having an older sibling of a specific age generated from analysis of the Indian Register data were applied to the 2011 NHS data to estimate the population born post-1985 that would be eligible for the remedy due to the siblings provision.

Table 7 provides a summary of the NHS based estimates of the potential impact of the 6(1)a All the Way amendment on the population entitled to registration in 2011. The table also provides estimates of the incremental increase in the eligible population in relation to the 2011 NHS estimate of the registered Indian population. As revealed in the table, the registered Indian population identified by the 2011 NHS was estimated to total 751,070 (after adjustment for under-coverage and incompletely enumerated reserves), including 361,167 on reserve and 389,903 off reserve.

Application of the hypothetical 6(1)a All the Way remedy (including the siblings provision to the NHS Scenario 1 population (i.e. Registered Indians and those reporting North American Indian ethnic origins) would increase the total population entitled to registration to 1,494,384, an incremental increase of 743,764 (or 99.0%). If one assumes that the population reporting Métis ethnic origins was also eligible for the remedy (NHS Scenario 2), the total population entitled to registration would rise to 1,873,307, an incremental increase of 1,122,238 of 148.1%. If one further assumes that the remedy could also apply to those who report North American and/or Métis identity (but not ethnic origins) (NHS Scenario 3), the total eligible population would rise further to 1,992,322, an incremental increase of 1,241,252 or 165.3%. As revealed in the table, the vast majority (about 99%) of the incremental population impact associated with each of the three scenarios is estimated to occur off reserve.

Table 7: National Household Survey Based Estimates of Potential Population Entitled to Indian Registration under Hypothetical 6(1)a All the Way Scenarios
Scenario Population Included 2011 Total Potential Qualifying Population 2011 Incremental Population Estimate (vs NHS Registered Indian Population)
Total (On and Off Reserve) On Reserve Off Reserve Total (On and Off Reserve) On Reserve Off Reserve
-- Registered Indian Population (2011 NHS Estimate) 751 070 361 167 389 903 --- --- ---
1 Registered Indians plus Non-Registered population reporting North American Indian ethnic origins (single or multiple) 1 494 834 368 834 1 126 000 743 764 7 667 736 097
2 Registered Indians plus Non-Registered population reporting 1) North American Indian ethnic origin (single or multiple) and/or 2) Métis ethnic origin (single or multiple) 1 873 307 370 108 1 503 199 1 122 238 8 942 1 113 296
3 Registered Indians plus Non-Registered population reporting 1) North American Indian ethnic origin (single or multiple) and/or 2) Métis ethnic origin (single or multiple) and/or 3) North American Indian and/or Métis Identity but non-Aboriginal ethnic origins 1 992 322 370 476 1 621 846 1 241 252 9 310 1 231 942
Source: Based on analysis of custom tabulations from the 2011 National Household Survey
Note: Estimates have been adjusted for incompletely enumerated Indian reserves and settlement and net NHS under-coverage

Comparison of Current NHS Estimates with Prior Research

NHS-based estimates for a scenario similar to the NHS Scenario 3 developed for this study were constructed for the Descheneaux study using data collected by the 2006 National Household Survey. Those prior estimates included all those who reported Aboriginal Identity (or Indian Registration) and those who did not report identity but reported Aboriginal ethnic origins (ancestry). The estimates excluded the population reporting Inuit Identity and/or Inuit ethnic origins. The 2006 NHS data were also adjusted to account for the populations residing on incompletely enumerated Indian reserves and for net survey under-coverage. No qualifying criteria based on age were applied to the estimates prepared for Descheneaux (i.e. all individuals born pre- and post-1985 were assumed to qualify for entitlement).

The research conducted for the Descheneaux litigation estimated the total 2006 population entitled to registration under the remedy to be 1,969,554, and incremental increase of 1,241,292 individuals in relation to the 2006 NHS Registered Indian population. That estimate is roughly the same as the estimate identified in the current NHS Scenario 3 analysis for 2011.

For a variety of reasons, it is often difficult to compare estimates prepared from the NHS for various census years. This is especially case with respect to estimates generated from the 2011 National Household Survey. The 2011 NHS was (unlike earlier NHS surveys) voluntary and appears to have experienced higher levels of non-response in lower income areas off reserve (Hulchanski et al, 2013). As such, it may have experienced higher levels of under-coverage among off-reserve Aboriginal populations than prior surveys.

Summary and Limitations

The estimates prepared for study derive from analysis of two main data sources that have quite different properties. These differences greatly impact the scale and comparability of the population impacts estimates generated for this study. As noted previously, data contained on the Indian Register fail to capture the descendants of a large population that died prior to its construction in 1951. As such, impact estimates associated with the various amendment scenarios that are based on the Register are likely to under-state the actual impact of the scenarios by a large amount.Footnote 12

Estimates based on the 2011 National Household Survey are considerably (roughly 10-12 times) higher than those generated from the Indian Register and are likely to provide a more complete picture of the potential population that could become eligible for registration under a broad interpretation of the 6(1) All the Way scenario. As noted previously, the NHS did not include individuals residing outside of Canada or those in institutional and collective living arrangements. As such this data source may also yield under-estimates of potential population impacts.

The NHS estimates are also derived from self-reported information concerning ethnic origins, identity and registration status. Prior research has demonstrated that ethnic origin and identity responses to the NHS are fluid and change over time, creating a considerable level of uncertainty concerning the actual size of these populations. The impact estimates prepared from the 2011 NHS are also now several years of out of date. More current estimates from the soon to be released 2016 NHS are expected to yield a larger Aboriginal population based on ethnic origins and identity and as such could yield even larger estimates of the population potentially eligible under the broad interpretation of the proposed 6(1)a All the Way scenario.

Finally, readers are also reminded that all of the estimates prepared for this study attempt to measure the incremental population that would become entitled to registration pursuant to the various remedies/scenarios examined. The number of individuals that would actually seek and qualify for registration is likely to be quite different, as many other factors not addressed in this analysis could result in eligible individuals not seeking registration.

Estimates of Potential Population Impacts of "6(1)a All the Way" Based on 2016 Census Data

Background

In October, 2016, the Government of Canada introduced a package of legislative amendments to the Indian Act in Parliament through Bill S-3. These amendments were intended to address known gender-based inequities in Indian registration highlighted by a recent ruling of the Quebec Superior Court (Descheneaux). During the study of Bill S-3, several individuals/organizations raised issues with the proposed amendments and brought forward other issues that could be addressed in the bill. Following a recommendation made by the Senate, in January, 2017, an extension was granted by the court to allow the Government to further assess Bill S-3, to confirm that the proposed amendments provide the appropriate remedies for the situations found in the Descheneaux case, and to ensure that the bill addresses other known sex-based inequities in Indian registration.

Earlier research concerning the potential population impacts of Bill S-3 (prepared by the author) examined several hypothetical amendments using data from the Indian Register and the 2011 National Household Survey.Footnote 13 The amendments addressed several issues including "cousins", siblings", and "enfranchised" children, as well as a remedy proposed by the Senate of Canada referred to as "6(1)a All the Way".

Indigenous and Northern Affairs Canada (INAC) has requested additional consulting services to update components of the previous research that explored the "6(1)a All the Way" amendment using the recently released Aboriginal data from the 2016 Census of Canada. This report presents the results of the updated research.

The Proposed "6(1)a All the Way" Amendment

Following deliberations undertaken by the Senate of Canada, it was proposed that Bill S-3 incorporate an amendment referred to as "6(1) All the Way". The proposed amendment would grant entitlement under:

  • "6(1)(a.1) to a person born prior to April 17, 1985 and who is a direct descendant of the person referred to in paragraph (a) or of a person referred to in paragraph 11(1)(a), (b), (c), (d), (e) or (f) as they read immediately prior to April 17, 1985.
  • (a.2) The purpose of this provision is to entitle to registration under s.6(1)(a) those persons who were previously not entitled to registration under s.6(1)(a) as a result of the preferential treatment accorded to Indian men over Indian women born prior to April 17, 1985, and to patrilineal descendants over matrilineal descendants born prior to April 17, 1985. (This is an interpretive aid for paragraph (a.1)).

It is not entirely clear as to how the proposed "6(1)a All the Way" amendment should be interpreted. The proposed amendment, for example, makes specific reference to "persons referred to in paragraph 11(1) a to f of the pre-1985 Indian Act". Section 11 of the pre-1985 Indian Act essentially described all those persons who were entitled to Indian registration. These individuals were subsequently assigned registration entitlement under Section 6(1)(a) of the 1985 Indian Act.  A strict (narrow) interpretation of the proposed amendment would suggest that it would have little or no incremental effect on the population entitled to Indian registration.

The clarifying paragraph (a.2) identifies sex equality objectives as the underlying basis for the proposed amendment. An interpretation of the proposed amendment which limited the "6(1)a All the Way" remedy to issues of sex equality in registration entitlement seems consistent with the overall intent of Bill S-3 and its proposed amendments.

Alternative interpretations of the proposed amendment exist. For example, Section 11 of the pre-1985 Indian Act was not intended to be interpreted in isolation from other provisions of the Indian Act, most notably Section 12 which described those persons who were not entitled to registration, as well as those who could be removed from the Indian Register. The proposed "6(1)(a) All the Way" amendment might, therefore, be interpreted to mean that entitlement under Section 6(1)(a) should be awarded to all those who were omitted or removed from the Register due the provisions of Section 12. A broad interpretation of the amendment could be viewed as extending the "6(1)a All the Way" remedy to all individuals born prior to April 17, 1985 who descended from a band member/registered Indian.

As discussed above, the proposed "6(1)a All the Way" amendment, if interpreted broadly, would extend registration entitlement under Section 6(1) to all individuals who could trace their ancestry to at least one person who is or was ever entitled to be a registered Indian before April 17, 1985 (the date of the 1985 Indian Act amendments (Bill C-31)). Such a person (i.e. the ancestor) could be a parent, a grand-parent, a great-grand parent, a great-great-grandparent, etc. This report presents the results of research based on the 2016 Census that explores the potential population impact of a broad interpretation of the "6(1)a All the Way" amendment.

Census Aboriginal Data

The 2016 Census allows for identification of Aboriginal populations using several concepts, including: ethnic origins (North American Indian, Métis and Inuit), Aboriginal identity (i.e. self-affiliation with an Aboriginal group (North American Indian, Métis, and Inuit)), Indian registration and band/first nations membership. For purposes of this study, the populations of interest include: those who reported Aboriginal ethnic origins (North American Indian and/or Métis); those who reported Aboriginal identity (North American Indian and/or Métis); and all those who reported Indian registration.

The original research (see footnote 13) explored three scenarios within the context of the 2011 National Household Survey. The initial scenario (Census Scenario 1) included the population reporting Indian registration and the population that reported North American Indian ethnic origins (single or multiple responses) but not Indian registration. A second scenario (Census Scenario 2) included the Census Scenario 1 population, as well as the non-registered population that reported Métis ethnic origins (single or multiple responses). A final scenario (Census Scenario 3) also included additional individuals who reported North American Indian and/or Métis identity, but who did not report Aboriginal ethnic origins or Indian registration. The current study explores the same three scenarios using the 2016 Census data.

When interpreting estimates of the population derived from the 2016 Census, it is important to recognize the limitations associated with this data source. As the Census is conducted among residents of Canada, data are unavailable for the Aboriginal population residing outside of Canada.Footnote 14 The Census also does not capture data on residents of institutions (e.g. prisons, health care facilities), group homes and other collective dwellings. The size and characteristics of the Aboriginal population residing in these forms of accommodation remain unknown.

Adjustments to the 2016 Census Data

Published data from the Census are also subject to error through both incomplete enumeration and survey under-coverage. In 2016, the populations of 14 Indian reserves (or settlements) were either not surveyed or incompletely surveyed.

According to data extracted from the July 2016 Indian Register, the registered Indian population residing on the 14 Indian reserves that were not completely enumerated in 2016 numbered about 33,135.Footnote 15

Some people in areas that were fully surveyed are also missed (known as survey under-coverage). Statistics Canada has not yet released estimates of the net under-coverage rates for the 2016 Census. In the absence of revised rates for 2016, the rates estimated for 2006 are assumed to provide a reasonable approximation of net under-coverage levels experienced by the 2016 Census.Footnote 16

Custom tabulations prepared from the 2016 Census were used to identify the populations reporting Aboriginal Identity, ethnic origins and Indian registration by age, province/region and gender. Data were extracted from these tabulations for the populations reporting Indian registration, North American Indian or Métis identity and/or ethnic origins, and adjusted to include the estimated population residing on incompletely enumerated Indian reserves and those missed due to survey under-coverage. No adjustments to the Census data were, however, made for the population residing outside of Canada and the populations residing in collective dwellings and institutional settings.

Applying the Siblings' Provision

Data extracted from the custom tabulations were organized by 5-year age cohorts making it possible to apply the siblings' provision to those born after the 1985 Indian Act. Under this provision, which was introduced in the 2010 Indian Act amendments, children born after April 16, 1985 would be eligible for the 6(1)a remedy if they have at least one sibling born on or prior to that date who also qualified for the remedy.Footnote 17 The probability estimates used in the analyses measure the likelihood that an individual (of a specific age) has an older sibling of a specific age. These probabilities, which were generated from analysis of Indian Register data, were applied to the 2016 Census data to estimate the population born post-1985 that would be eligible for the remedy due to having a qualifying older sibling.

Analyses Results

Table 8 provides a summary of the 2016 Census-based estimates of the potential impact of the "6(1)a All the Way" amendment on the population entitled to registration in 2016. The table also provides estimates of the incremental increase in the eligible population in relation to the 2016 Census estimate of the registered Indian population. As revealed in the table, the 2016 registered Indian population was estimated to total 905,095 (after adjustment for under-coverage and the populations living on incompletely enumerated reserves), including 401,772 on reserve and 503,373 off reserve.

Application of the hypothetical "6(1)a All the Way" remedy (including the siblings' provision) to the Census Scenario 1 population (i.e. Registered Indians and those reporting North American Indian ethnic origins) would increase the total population entitled to registration to 1,652,140, an incremental increase of 747,045 (or 82.5%). If one assumes that the population reporting Métis ethnic origins was also eligible for the remedy (Census Scenario 2), the total population entitled to registration would rise to 2,112,935, an incremental increase of 1,207,840 of 133.4%. If one further assumes that the remedy could also apply to those who report North American and/or Métis identity (but not ethnic origins) (Census Scenario 3), the total eligible population would rise further to 2,223,560, an incremental increase of 1,318,465 or 145.7%. As revealed in the table, the vast majority (about 99%) of the incremental population impact associated with each of the three scenarios is estimated to occur off reserve. Provincial/regional level estimates are provided in the report's appendix.

Table 8: 2016 Census-Based Estimates of Potential Population Entitled to Indian Registration under Hypothetical "6(1)a All the Way" Scenarios
Scenario Population Included 2016 Total Potential Qualifying Population 2016 Incremental Population Estimate (versus Census Registered Indian Population)
Total (On and Off Reserve) On Reserve Off Reserve Total (On and Off Reserve) On Reserve Off Reserve
-- Registered Indian Population (2016 Census Estimate) 905,095 401,722 503,373 --- --- ---
1 Registered Indians plus Non-Registered population reporting North American Indian ethnic origins (single or multiple) 1,652,140 408,804 1,243,336 747,045 7,082 739,963
2 Registered Indians plus Non-Registered population reporting 1) North American Indian ethnic origin (single or multiple) and/or 2) Métis ethnic origin (single or multiple) 2,112,935 410,830 1,702,106 1,207,840 9,108 1,198,732
3 Registered Indians plus Non-Registered population reporting 1) North American Indian ethnic origin (single or multiple) and/or 2) Métis ethnic origin (single or multiple) and/or 3) North American Indian and/or Métis Identity but non-Aboriginal ethnic origins 2,223,560 411,251 1,812,309 1,318,465 9,529 1,308,936
Source: Based on analysis of custom tabulations from the 2016 Census
Note: Estimates have been adjusted for the population residing on incompletely enumerated Indian reserves and net survey under-coverage.

Comparison of Current Census Estimates with Prior Research

2006 Census-based estimates were constructed for the Descheneaux litigation for a scenario similar to the 2016 Census Scenario 3. The 2006 estimates included all those who reported Aboriginal Identity (or Indian Registration) and those who did not report identity but reported Aboriginal ethnic origins (ancestry). The estimates excluded the population reporting Inuit Identity and/or Inuit ethnic origins. The 2006 Census data were also adjusted to account for the populations residing on incompletely enumerated Indian reserves and for net survey under-coverage. No qualifying criteria based on age, however, were applied to the estimates prepared for Descheneaux (i.e. all individuals born pre- and post-1985 were assumed to qualify for entitlement).

The research conducted for the Descheneaux litigation estimated the total 2006 population entitled to registration under the remedy to be 1,969,554, an incremental increase of 1,241,292 individuals in relation to the 2006 Census registered Indian population. In relation to the 2006 estimate, the incremental population estimated for 2016 (in this study) is roughly 6% higher.Footnote 18 The 2016 estimate of the incremental population (for this scenario) was also roughly 6% higher than the estimate prepared previously for 2011.

The 2016 estimate of the incremental population impact under Scenario 1 does not differ materially from that estimated for 2011. In relation to the 2011 estimate, the incremental population impact under Scenario 2 was roughly 7.6% higher in 2016.

Summary and Limitations

As noted previously, the Census estimates do not include individuals residing outside of Canada or those in institutional and collective living arrangements. As such, this data source can be expected to yield under-estimates of potential population impacts of hypothetical remedy. The estimates also derive from self-reported information concerning ethnic origins, identity and registration status. Prior research has demonstrated that ethnic origin and identity responses to the Census are fluid and change over time, creating a considerable level of uncertainty concerning the actual size of these populations.

Finally, readers are also reminded that the estimates prepared for this study attempt to measure the incremental population that would become entitled to registration pursuant to the hypothetical amendment examined. The number of individuals that would actually seek and qualify for registration is likely to be quite different, as many other factors not addressed in this analysis could result in eligible individuals not seeking or acquiring registration.

References

Hulchanski D, R. Murdie, A. Walks and L. Bourne, Canada's voluntary census is worthless. Here's why, article appearing the Globe and Mail, October, 2013

Clatworthy, S.J., Estimating the Population Impacts of a Proposed Legislative Remedy Concerning the "Cousins" Issue, prepared for Indigenous Affairs and Northern Development Canada, December, 2016

Clatworthy, S.J., Estimating the Population Impacts of a Proposed Legislative Remedy Concerning the "Siblings" Issue, prepared for Indigenous Affairs and Northern Development Canada, August, 2016

Clatworthy, S.J., Estimating the Population Impacts of a Proposed Legislative Remedy Concerning the "Enfranchised Children" Issue, prepared for Indigenous Affairs and Northern Development Canada, December, 2016

Clatworthy, S.J., An Assessment of the Population Impacts of Select Hypothetical Amendments to the Indian Act, prepared for Indigenous and Northern Affairs Canada, September, 2017

Appendix – Provincial/Regional Estimates by Location of Residence

Table 8a: 2016 Census-Based Estimates of Potential Population Entitled to Indian Registration under Hypothetical "6(1)a All the Way" Scenarios, All Locations by Province/Region
Province/Region Registered Indian Census Scenario Incremental Total Qualifying Population by Census Scenario
1 2 3 1 2 3
Atlantic Region 57,093 81,358 116,749 125,891 138,451 173,842 182,984
Quebec 89,200 204,518 252,145 269,953 293,718 341,345 359,153
Ontario 195,333 225,882 336,508 367,347 421,215 531,840 562,680
Manitoba 138,835 24,340 95,107 106,610 163,175 233,942 245,445
Saskatchewan 119,977 24,572 63,750 71,808 144,548 183,726 191,785
Alberta 138,011 84,064 169,581 185,923 222,075 307,592 323,934
British Columbia 146,328 94,491 163,188 178,559 240,819 309,516 324,886
Yukon 6,242 1,775 2,501 2,561 8,016 8,742 8,803
Northwest Territories 13,906 2,572 4,107 4,354 16,478 18,013 18,260
Nunavut 172 481 636 636 653 807 807
Approx. Rounding/Data Suppression Error 0 2,992 3,568 4,823 2,992 3,568 4,823
All Regions 905,095 747,045 1,207,840 1,318,465 1,652,140 2,112,935 2,223,560
Note: Totals may not sum due to rounding error. The relatively large rounding errors result from both random rounding and data suppression associated with the use of 5-year age cohorts in the analysis.
Table 9a: 2016 Census-Based Estimates of Potential Population Entitled to Indian Registration under Hypothetical "6(1)a All the Way" Scenarios, On Reserve by Province/Region
Province/Region Registered Indian Census Scenario Incremental Total Qualifying Population by Census Scenario
1 2 3 1 2 3
Atlantic Region 20,419 268 307 312 20,688 20,726 20,732
Quebec 52,413 742 846 846 53,155 53,259 53,259
Ontario 73,217 1,340 1,537 1,591 74,557 74,754 74,808
Manitoba 72,624 654 955 955 73,278 73,579 73,579
Saskatchewan 62,199 938 1,117 1,117 63,137 63,316 63,316
Alberta 61,679 1,429 1,707 1,707 63,107 63,386 63,386
British Columbia 58,842 1,891 2,791 2,865 60,733 61,632 61,707
Yukon 0 0 0 0 0 0 0
Northwest Territories 329 23 35 35 352 364 364
Nunavut 0 0 0 0 0 0 0
Approx. Rounding/Data Suppression Error 0 -204 -186 102 -204 -186 102
All Regions 401,722 7,082 9,108 9,529 408,804 410,830 411,251
Note: Totals may not sum due to rounding error. The relatively large rounding errors result from both random rounding and data suppression associated with the use of 5-year age cohorts in the analysis.
Table 10a: 2016 Census-Based Estimates of Potential Population Entitled to Indian Registration under Hypothetical "6(1)a All the Way" Scenarios, Off Reserve by Province/Region
Province/Region Registered Indian Census Scenario Incremental Total Qualifying Population by Census Scenario
1 2 3 1 2 3
Atlantic Region 36,673 81,090 116,442 125,579 117,764 153,115 162,252
Quebec 36,787 203,775 251,300 269,107 240,562 288,087 305,894
Ontario 122,116 224,543 334,970 365,757 346,658 457,086 487,872
Manitoba 66,211 23,686 94,152 105,656 89,897 160,363 171,867
Saskatchewan 57,778 23,634 62,633 70,691 81,412 120,411 128,469
Alberta 76,332 82,635 167,873 184,216 158,967 244,205 260,548
British Columbia 87,486 92,599 160,398 175,694 180,085 247,884 263,180
Yukon 6,242 1,775 2,501 2,561 8,016 8,742 8,803
Northwest Territories 13,577 2,549 4,073 4,319 16,126 17,650 17,896
Nunavut 172 481 636 636 653 807 807
Approx. Rounding/Data Suppression Error 0 3,195 3,755 4,721 3,195 3,755 4,721
All Regions 503,373 739,963 1,198,732 1,308,936 1,243,336 1,702,106 1,812,309
Note: Totals may not sum due to rounding error. The relatively large rounding errors result from both random rounding and data suppression associated with the use of 5-year age cohorts in the analysis
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