NZ Supreme Court Building, Wellington
The NZ Supreme Court has delivered its judgments and local anti-fluoride campaigners (and their big business supporters) seem to have come to the end of the line with their legal actions to prevent community water fluoridation (see Supreme Court rules against Taranaki anti-fluoride campaigners and Supreme Court rules South Taranaki fluoridation allowed).
Specifically, the Supreme Court delivered two judgments rejecting three appeals by NZ Health Inc. These appeals arose from High Court rejection of challenges by New Health NZ to prevent South Taranaki District Council from fluoridating drinking water in Patea and Waverly. While dealing with local situations these legal actions, ongoing since the end of 2012, inhibited other councils throughout New Zealand from making fluoridation decisions for fear of the cost involved in possible legal defences.
In effect, the Supreme Court judgements free up other councils to go ahead with fluoridation decisions, although the impending legislation transferring decision-making to District Health Boards may also cause delays.
The Supreme Court judgements were welcomed by health authorities and many New Zealanders concerned about the time wasting tactics used by anti-fluoride campaigners and their big business supporters.
Nature of the judgments
Court judgements can be complex but the Supreme Court provided a press release to help readers understand this case (see Fluoridation: New Health NZ v South Taranaki DC). This also provides a brief history of the legal actions since 2012.
Several things stand out to me.
The courts cannot rule on the science
The scientific arguments commonly presented by anti-fluoride campaigners are not considered in this judgement – this is as it should be. Courts do not decide the science.
Through this whole procedure lawyers for New Health NZ presented a litany of misrepresentations of the science we have come to expect from anti-fluoride campaigners. Apparently these campaigners are so used to relying on arguments misrepresenting the science they just could not help themselves even though the courts do not arbitrate on scientific matters.
I have always considered this somewhat strange. The strongest arguments that anti-fluoride campaigners can present relate to freedom of choice and the rights of minorities in social decisions. Yet they always seem to lead with misrepresentation and distortion of the science and only fall back to their strongest arguments when these misrepresentations are challenged by actual consideration of the science.
The statutory power of councils
New Health NZ argued that councils do not have the statutory authorisation to add fluoride to drinking water. The Supreme Court majority dismissed this ground for appeal. The dismissal was based on:
“the Council’s general power of competence in s 12 of the Local Government Act and in light of its duty under the Health Act to protect, promote and improve public health in its region. The relevant provisions had to be interpreted against the background that fluoridation had been lawful in New Zealand for decades prior to enactment.”
Claim that fluoridation breaches the NZ Bill of Rights.
On this question the Supreme Court:
“considered that the conferral of a statutory power to fluoridate water to levels prescribed by the drinking water standards was a justified limit on the right protected by s 11 of the Bill of Rights Act”
“the Bill of Rights Act meant that local authorities could fluoridate water only where doing so in the particular district would be demonstrably justified in terms of s 5, an assessment which may depend on the local conditions.”
So, although there were subtle differences in the arguments of separate members of the court this claim by New Health NZ was rejected.
Not a unanimous decision
No doubt anti-fluoride activists will make much of the fact that there were differences between members of the Supreme Court on some details. I don’t think such differences are at all surprising or will necessarily give these asctivists the comfort they will attempt to derive from them. One of the judgements (NZSC59.pdf) gives detials of the arguments presented by sperate court members
The issues considered by the Court relate to interpretations of the Health Act and the NZ Bill of Rights. This involves considerations of ethical issues and the practical implementation of democratic procedures. There is no pre-ordained right or wrong answers to such matters and they are normally decided by prevailing procedures, ethical approaches and political matters.
It is possible to argue wither way on such issues. This is why I consider anti-fluoride campaigners make a mistake in their concentration on scientific matters which can easily be decided (and which they misrepresent) . If they put more effort into debating the ethical and political aspects they might have more success in winning people to their arguments and in achieving their political demands.
Who has been financing this legal action?
The Supreme Court press release describes New Health NZ, the anti-fluoride group which fronted the legal action, as a “consumer advocacy group.” This is factually wrong. New Health NZ was formed by the NZ Health trust to front such actions but the NZ Health Trust is, in fact, a lobby group for the “natural”/alternative health industry in New Zealand. It is effectively representing big business and not consumers. (Although, strangely, it has registered itself as a charity – perhaps this should be challenged by someone).
In fact, very few consumer advocacy groups could afford such legal action. The cost of defending against this action was substantial. South Taranaki mayor Ross Dunlop said the legal battle had cost the council at least $300,000-$350,000. The Ministry of Health assisted with funding but one can see how the fear of such legal costs has scared councils from making fluoridation decisions in the six years these issues have been before the High Court and then the Supreme Court. Even in this last case, the Supreme Court ordered New Health NZ to pay the Council only $20,000 towards costs.
The New Zealand Health Trust has funded, through New Health NZ, this legal battle to the tune of about $180,000 per year. I described this in my articles Who is funding anti-fluoridation High Court action?, Corporate backers of anti-fluoride movement lose in NZ High Court and Anti-fluoridationists go to Supreme Court – who is paying for this?
The financial returns from the NZ Health Trust and New Health NZ clearly show that money is flowing from the “natural”/alternative health industry (which is big business), via the NZ Health Trust (a lobby group for that industry) into New Health NZ which has then used it to find their anti-fluoridation legal activity to the tune of about $180,000 per year ($340,000 in 2017).
This graph shows the correspondence of grants received by New Health NZ with grants paid by the NZ Health Trust.
The size of the grants received by New Health NZ corresponds to payments for consultancy & professional fees. It is most likely this represents the funding used for the legal campaigns against community water fluoridation.
A clear example of big business funding trying to deny a safe and effective social health programme for New Zealanders