Whangārei District Council’s only hope of stalling the start-up of fluoridating its drinking water supply tomorrow has been dashed.
The council took its fight against a fluoridation directive to the High Court in Wellington today.
Justice Karen Grau reserved her decision on granting interim relief to Whangārei District Council.
The Whangārei District Council needs to start the process to fluoridate its water by 9am tomorrow in order to set up the specialised infrastructure in time to meet the Government’s March 28 deadline.
Justice Grau told the court she had more reading to do on the matter but that she would release her decision before March 28.
The council will cease fluoridation if the High Court grants the interim relief before then.
Whangārei Mayor Vince Cocurullo said he would wait for the court decision before commenting further.
Eleventh-hour U-turn
In submissions, Crown counsel Jason Varuhas criticised the Whangārei District Council’s 11th-hour U-turn at a council meeting yesterday from its previous decision against fluoridation.
“For nearly four months, Whangārei District Council’s publicly stated policy had been not to comply with the direction and to act unlawfully – an extraordinary situation for a public body,” Varuhas said.
“It’s had multiple opportunities to reconsider during that period but only did so yesterday.”
The council’s resolution stated that staff could cease fluoridation if the court granted interim relief.
“What one takes from the resolution yesterday, it seems to me, is that council would see the interim orders as clearing a path for them to pursue their preferred course of non-compliance with their mandatory statutory duty.”
Varuhas said there was legal precedent to show that “the granting of interim relief should not have the effect of allowing something that might be unlawful”.
The council’s defiance was despite fluoridation being a well-established public health measure and the levels used in NZ being evaluated as a safe and effective.
Varuhas pointed to comprehensive studies showing the science relied on by the Whangārei District Council — showing a connection between fluoridation and lowered IQ in children — was unreliable.
He said studies showed communities without fluoride such as Whangārei had worse oral health outcomes.
Māori and those who suffered socio-economic disadvantage were the worst affected by the absence of water fluoridation.
The Crown also argued the council had resolved to act unlawfully, but those that sought the court’s aid must act lawfully – especially if that other party was a public body.
“To adopt a policy to act unlawfully is itself unlawful,” Varuhas said.
The council was also reneging on its previously agreed contract with the Ministry of Health to secure funding to build capital works to support fluoridation and accordingly, more than $2 million in public money had been paid to the council for the purpose.
However, the council’s lawyer Jeremy Browne said the council could be left carrying the can for another $2 million but that was in the council’s hands because, if it fluoridated, it would meet the terms of the contract and the Ministry would pay the further $2 million necessary to complete the process.
Failure to fluoridate detrimental — judge
Justice Grau noted more than one person in the council had claimed they were willing to go to jail over the issue, but she noted fines were the only penalty available under the Health Act.
Based on the Ministry’s understanding of the science, failure to fluoridate would be detrimental to the community of Whangārei, which had a high proportion of Māori and lower socio-economic residents – people most negatively affected by the absence of fluoridation.
“For example, children under five in the relevant community suffer 3.41 decayed missing or filled teeth on average and that number was higher for the Māori population in Whangārei. In comparison to Wellington, the same figure was 1.9.”
Interim orders, if granted, would also have a destabilising effect on the five councils which were still directed to fluoridate but had not yet done so.
It would also impact the Government’s $18 million already set aside to pay for fluoridation infrastructure in the 14 councils that had been directed to do so.
Issuing Whangārei District Council an interim order could also be an encouragement to other councils contemplating such measures and interest groups.
Browne said the interim relief sought was important.
It was clear the council has been very unwilling to fluoridate, but it had done so as a result of very persistent and clear messaging from the Director-General of Health that enforcement action was available and would be considered.
The council wanted a judicial review of the Director-General of Health’s directive to fluoridate and a ruling on the information used to make fluoridation directive decisions.
Browne said the science used as the basis for the Director-General’s directive was out of date and the Ministry of Health was demonstrating institutional inertia by not considering new studies that had been conducted since those used for making the directive.
Local Democracy Reporting is local body journalism co-funded by RNZ and NZ On Air
