The Whangārei District Council has lost its bid for a legal injunction that would have allowed it to stop adding fluoride to the city’s water supply.
The High Court’s decision was critical of the council, which Justice Karen Grau said was trying to protect itself from the consequences of not following the law.
Justice Grau said it wasn’t appropriate for the court to “grant orders facilitating unlawful conduct”.
She said the council hadn’t helped its own case by applying for the injunction at the last minute, and by accepting funding for fluoridation equipment it said it didn’t want to use.
Whangārei District Council was one of 14 local authorities around the country ordered to fluoridate its water supply, following a law change that shifted the responsibility for such decisions from local councils to the Director-General of Health.
Despite that, councillors voted last November not to proceed with fluoridation.
Since then government pressure and potential costs have mounted, prompting councillors to vote on March 17, under protest, to revoke their previous decision.
However, they also voted to stop fluoridating immediately if they won their application for a court injunction on March 18.
Had the council won, it would have stopped the Health Ministry taking any enforcement action against the council until its main legal challenge could be heard.
The main challenge involves asking the High Court to declare whether fluoride is safe at the required levels of 0.7-1.0mg/litre, and to rule on whether the Director-General’s fluoridation order was lawful.
No date has been set as yet for that challenge.
Because the court did not make its decision known immediately on March 18, the council started fluoridating on March 19 – the latest possible start date, due to the extensive testing required, to be sure of meeting the Health Ministry’s March 28 deadline.
Justice Grau’s decision means fluoridation will now continue, at least until the outcome of the council’s bigger legal challenge is known.
In a 24-page decision, Justice Grau said the main reason for rejecting the council’s application for an injunction, or “interim relief”, was that doing so would allow unlawful conduct.
“In other words, the Council is asking the Court to order the Ministry of Health not to take any enforcement action against the Council under the Health Act when it (as it will if interim relief is granted) begins to act unlawfully from March 28, 2025, nor to seek to enforce its funding arrangements with the Council.”
She also noted the council’s March 17 resolution included directing staff to cease fluoridation if an injunction was granted.
That amounted to instructing staff to act in contravention of the law.
Justice Grau noted that the fluoride law change – and the hefty penalties that came with it – were put in place by Parliament “to deter councils form refusing to fluoridate in the face of vocal opposition from parts of the community”.
She said the council’s conduct, including its 11th hour application and “public disregard for the law”, had undermined its case for an injunction.
Also counting against the council was the fact it had already accepted funding for fluoridation equipment.
The council’s lawyers, backed by experts from Canada and Denmark, argued that fluoridation at the required level posed a serious risk to the public, especially pregnant women and babies.
It was also a breach of the council’s legal obligation to provide safe drinking water.
That was disputed by the Health Ministry’s experts, who said the evidence overall was that fluoride was safe at the levels used in drinking water.
Justice Grau acknowledged the council’s experts but said she was not satisfied their evidence established “such immediate risks that warrant interim orders, particularly where significant parts of New Zealand (more than half) have had fluoridated water for a number of decades”.
She also expressed doubts about the council’s chances of success in its challenge against the safety and legality of fluoridation.
The matter of who pays the costs arising from the failed injunction will be decided after the main challenge has been heard.
rnz.co.nz
