Two anti-fluoridation groups ordered to pay $41,000 after losing court case against council

21:14 pm on 12 July 2024

By Ric Stevens, Open Justice Reporter of

Justice La Hood said that while the applicants considered they were acting in a public interest, the case "reflected the special interests of their members" in reality. Photo: 123RF

Two groups which oppose the fluoridation of water supplies have been ordered to pay $41,000 after losing a court case against the Hastings District Council.

The Fluoride Action Network (FAN) and NZ Doctors Speaking Out with Science (NZDSOS) applied for an urgent injunction against the council in April.

They were trying to stall the council's decision to reintroduce fluoride in the water supply for Hastings, Flaxmere, Havelock North, Bridge Pa and Pakipaki, in response to a government directive under the Health Act.

Decades of studies have shown that fluoride helps prevent tooth decay.

However, the anti-fluoridation groups argued that it was unlawful for the council to treat the water before another case considering water fluoridation in relation to the New Zealand Bill of Rights is heard by the Court of Appeal next year.

High Court Justice Dale La Hood dismissed the application for a judicial review of the council's decision in May.

The Hastings District Council was joined as respondents in the case by two government officials: The Director-General of Health and the Attorney-General, represented by the same counsel.

Justice La Hood has now ordered the two anti-fluoridation groups to pay court costs to the council, and to the government entities. He ordered FAN and NZDSOS to pay $20,470 to the council, and $20,566 to the central government respondents jointly.

Counsel for the anti-fluoridation groups had argued that the court should not make a costs order as their case was a matter of public interest.

The groups argued there was considerable public importance in access to drinking water "free from contamination through fluoridation", and the right to decline medical treatment was a fundamental right provided for in the New Zealand Bill of Rights Act 1990.

They said the groups had no private interest in the outcome of the case, as they were incorporated societies with a public interest purpose.

They also argued that public access to the court to determine the legality of the actions of central and local government was "a constitutional right".

They said the Crown had pressured a local authority to comply with an "unlawful directive" before the Bill of Rights court case was completed.

However, Justice La Hood said that while the applicants considered they were acting in a public interest, the case "reflected the special interests of their members" in reality.

"The proceeding was effectively another vehicle for groups that oppose fluoridation to challenge the Director-General's directions to local authorities to fluoridate their water supplies and to challenge the fluoridation of water in New Zealand more generally," he said.

The Fluoride Action Network said the costs would be divided between the two groups, FAN and NZDSOS, and FAN would be asking its supporters to help meet the costs.

"These costs are much more excessive than we allowed for when taking the case," FAN National Co-ordinator Mary Byrne said.

"We also feel it is extremely unjust that we are being ordered to pay the costs of the Director-General of Health's lawyer as we did not take the case against the DGH.

"The judge invited the DGH into the case that we had taken against Hastings District Council."

Byrne said the group took "umbrage" at the judge saying that he would not waive costs as he did not consider the case was in the public interest.

"It shows the judge is totally out of touch with the New Zealand public, who usually vote against fluoridation in non-fluoridated areas, and the current science."

Byrne said there were now 10 US-government-funded studies which showed fluoride "damages" the brains of children exposed to fluoride at exposure levels caused by fluoridation.

"Every child born in a fluoridated community is harmed by the same amount as leaded petrol was harming children. If that isn't a public interest matter what is?"

Hastings fluoridated its water supply between 1954 and 2016.

Fluoridation was interrupted by the 2016 Havelock North campylobacter outbreak that required the supply to be chlorinated instead, and technology allowed only one chemical to be added to the water.

The council has since completed a $100 million upgrade to its water infrastructure.

In July 2022, then Director General of Health Dr Ashley Bloomfield directed 14 councils to add fluoride to some or all of their water supplies. The Hastings urban water supply was one of them.

Fluoridation was put to a community referendum in Hastings in 1990 and 2013, with the 2013 referendum resulting in 63.5 percent voting in favour of it.

But Byrne said FAN had found that areas given directives in 2022 had seen opposition to fluoridation starting in their town.

In Kawerau, with a population of about 7000, more than 700 signatures were collected on a petition in one week.

"Whangarei, Dannevirke and Oamaru have had similar responses. Two weeks ago, a large protest was held in Oamaru," she said.

In the costs judgement, Justice La Hood said issues relating to justification of water fluoridation had already been raised and dismissed by the courts at all levels.

In addition, he said Parliament had explicitly endorsed water fluoridation as a public health measure.