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.

Summary of Major Findings

List of tables

• Table 1: Hypothetical Amendment Scenarios Addressed in Research Based on the Indian Register
• 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
• 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
• 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
• Table 5: 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
• Table 6: Summary of Estimated Changes in Registration Entitlement Associated with Alternative Scenarios Examined with Indian Register Data, Canada, July, 2016
• Table 7: National Household Survey Based Estimates of Potential Population Entitled to Indian Registration under Hypothetical 6(1)a All the Way Scenarios
• Table 8: 2016 Census-Based Estimates of Potential Population Entitled to Indian Registration under Hypothetical "6(1)a All the Way" Scenarios
  • 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
  • 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
  • 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

List of Figures

• Figure 1: National Household Survey Based Estimates of Potential Population Entitled to Indian Registration under Hypothetical 6(1)a All the Way Scenarios
• Figure 2: National Household Survey Based Estimates of Potential Population Entitled to Indian Registration under Hypothetical 6(1)a All the Way Scenarios
• Figure 3: National Household Survey Based Estimates of Potential Population Entitled to Indian Registration under Hypothetical 6(1)a All the Way Scenarios
• Figure 4: Incremental Population Entitled to Indian Registration under Scenario 4 (versus Bill C-3), by Location of Residence, Canada, 2016-2091 (Projected)

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:

• The "siblings" issue;
• The "cousins" issue; and
• Children who enfranchised with their mother as a result of her marriage to a non-Indian.

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:

• "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)).

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.

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.

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.

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

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.

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.

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.

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

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