Director-General of Health Dr Diana Sarfati. Photo: NZME / LDR
Whangārei's fluoridation rebellion is intensifying with the Director-General of Health threatening to potentially pull rank and turn on the switch to add fluoride to the city's drinking water if the council continues its defiance.
This comes as ratepayers face the prospect of almost $5 million in potential extra Whangārei District Council (WDC) costs after councillors voted in December against adding fluoridation to the water.
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In a strongly-worded letter to WDC Mayor Vince Cocurullo and chief executive Simon Weston, Director-General of Health Dr Diana Sarfati told the council it was an offence under the Health Act 1956 for a local authority to contravene a direction (to fluoridate).
She said the minister of health could seek a rare High Court writ of mandamus - a type of court order - overriding WDC's refusal and forcing it to flick the switch for fluoridating its drinking water.
If enacted, it will likely be a New Zealand first.
The writ enables the Director-General to turn on the fluoridation switch herself or order council staff or contractors to do so.
"The act also provides that in circumstances where a local authority is in default of its legal obligations, the Director-General of Health may perform those obligations," she said.
WDC is the only council among 14 refusing to fluoridate its drinking water after the government's August 2022 directive. It must fluoridate by 28 March.
Whangārei Mayor Vince Cocurullo. Photo: Susan Botting / LDR
Sarfati said WDC's role was to implement the Director-General's directions. It was under a mandatory statutory duty to comply with these.
"As such, the council has no discretion to refuse to comply with a direction."
Weston said the Director-General could compel the council to perform any duty it had failed to carry out under the Act.
Refusing to comply also brought the risk of Minister for Local Government Simon Watts intervening, Weston said.
Sarfati wrote to WDC on 30 January in response to its 18 December decision to seek a High Court injunction and fluoridation deadline extension.
This followed the council's 28 November decision not to fluoridate.
Vince Cocurullo inside Whangārei's Whau Valley water treatment plant. Photo: Susan Botting / LDR
"I reiterate that I expect the council to comply with its direction by the required date, which is 28 March, 2025, and I do not consider there is a basis for an extension," Sarfati said.
She said the minister of health could apply to the High Court for a writ of mandamus to compel WDC to perform any duty it had failed to perform under the act.
A short-notice extraordinary WDC meeting on Wednesday will revisit the council's November 28 fluoridation decision in the wake of Sarfati's letter.
She has requested a letter from WDC before 5pm on Valentines Day, confirming whether the council intends to comply with the fluoridation direction for Whangārei and Bream Bay by 28 March.
Cocurullo, Deputy Mayor Phil Halse and councillors Benney, Jayne Golightly, Marie Olsen, Simon Reid and Phoenix Ruka pushed for the injunction at WDC's 18 December meeting.
Meanwhile councillors Nick Connop, Ken Couper, Deb Harding, Patrick Holmes, Scott McKenzie, Carol Peters and Paul Yovich were against.
Cocurullo, who used his casting vote at the December meeting in favour of seeking a deadline extension and injunction, would not comment on Sarfati's representations in the wake of her letter.
Neither would he be drawn on whether the council should continue with its fluoridation ban or change tack at the meeting on Wednesday.
He said the council was being responsible in its decision not to fluoridate, due to health concerns, which it had to take into account under legislation such as the Local Government Act.
Cocurullo said ordering the council to fluoridate meant removing the community's right to have a say in the important fluoridation decision.
Weston said councillors risked personal liability for financial penalties resulting from failing to carry out the fluoridation direction. This risk also applied to staff.
WDC chief executive Simon Weston at Whangārei's Whau Valley Dam. Photo: Susan Botting / LDR
Sarfati's letter threatened heavy non-compliance penalties under the Health Act.
"The Act provides for potentially heavy penalties upon any conviction by a court. The ministry (of Health) will consider whether prosecutions should be commenced on a case-by-case basis in accordance with the Solicitor-General's prosecution guidelines," Sarfati said.
WDC ratepayers face the prospect of paying significantly towards the $4.857 million in extra costs as a result of the council's current position.
That's from having to pay back or miss out on $4.557 million the government's putting towards necessary fluoridation equipment for the district's five water treatment plants including at Whau Valley; a potential fine of up to $200,000 for not complying with the directive (with an added $10,000 a day for every day or part-day WDC doesn't comply after the 28 March deadline), at least $100,000 should the council seek an injunction (with other costs on top of that likely including paying for the Ministry of Health court costs if the application is lost).
Whangārei's Whau Valley water treatment plant provides much of WDC's council-supplied drinking water. Photo: NZME / LDR
Northland law firm director Jeremy Brown has been appointed by the council working party set up at the 18 December meeting to seek an injunction.
Weston, the council chief executive, said the court was likely to treat an application for an Interim injunction with scepticism, given the council had already received government funding for fluoridation infrastructure.
Sarfati said there was no legal uncertainty about the government's August 2022 fluoridation directions.
- LDR is local body journalism co-funded by RNZ and NZ On Air.
