Kia ora J,

 

Thank you for your request for information. We will be responding to the
below request.

 

I have attached an information sheet on our processes and requirements
under the Local Government Official Information and Meetings Act 1987.

 

We will respond to your request as soon as possible and in any event no
later than 20 working days after the day your request was received. This
will be by 26 September 2024.

 

If you have further questions please feel free to contact Angela Hare
([1][email address]) on 09 301 0101, quoting reference
8140014423.

 

 

Ngā mihi,

The Privacy and LGOIMA team

Auckland Council

 

 

 

 

From: J Bruning <[FOI #28230 email]>
Sent: Thursday, August 29, 2024 12:15 PM
To: Official Information <[email address]>
Subject: Official Information request - Fluoride - legal advice received
by Council does S116E undermine and contradict other relevant legislation?

 

 

Dear Auckland Council,

Please note: Joseph on Constitutional and Administrative Law (5th Edition)
(2021)

10.8 Obedience to convention: Every primary rule of obligation, including
conventions, risks being flouted from time to time. Politicians will be
guided by their political instincts and may weigh up the advantages of
breaching a convention and risk the political consequences.
Politicians may seek refuge in the uncertainty of conventional rules and
stand their ground. It may be disputed whether a convention exists, or
what obligation it prescribes, or whether an agreed convention is
applicable.
23.2.3: The duty to weigh mandatory statutory considerations extends to
facts so relevant that Parliament would have intended them to be taken
into account. Decision-makers cannot accord appropriate weight to
contesting considerations without being in receipt of the relevant facts.

Public concerns reflect, following Joseph, that formal risk assessment,
and medical drug trials are administrative law conventions where robust
methodological processes must be followed, which promote trust in
regulatory authorities have been set aside with respect to fluoride's
potential toxicity. PSGR are concerned that a departure outside
convention, for example, a robust following of a trusted methodological
process, may result in a breakdown in trust, and create alarming
precedents for over-enthusiastic officials, and undermine public health.

The public have never been granted the opportunity to debate the
Director-General of Health's claims that the Office of the Prime
Minister's Chief Science Adviser's reviews of fluoride (2014 and 2021),
are scientifically valid and fit for purpose as a policy document to
permit mandatory fluoridation. Judges appear to have not 'twigged' that
without a robust and transparent methodological process to assess the
available science, reviews by officials must be considered as politically
dubious, and cannot be asserted as scientifically valid for policy
purposes. I.e. as a 'single source of truth'. Please note that the third
document, a Cochrane study (2015) was rigorous, but was not a review of
the literature of the safety of fluoride, as the only risk factor
considered was fluorosis.

Please note that neither the public, nor relevant scientific experts have
been permitted to formally respond to the OPMCSA 2014 and 2021 papers. In
2017 the Select Committee declared that public input on safety of fluoride
was out of scope of the consultation, and later in the 2021 Inquiry, the
Inquiry Committee then stated that the science had been settled in the
2017 process.

Links to fluoride decisions, including committee documents are available
on this page:
[2]https://psgrnz.substack.com/p/fluoride-t...

The public are increasingly concerned that local authority officials may
risk limiting their consideration relating to fluoridation of drinking
water to orders under the s116 in the Health Act (1956) to the exclusion
of other legislation that this newly inserted s116E may unfortunately
undermine or contradict.

Please advise on which dates Auckland Council have sought legal advice,
and received a response on the following issues:

1.The Health Act 1956 requires that Auckland Council protect health.
s.116E of the Health Act requires that you fluoridate municipal water:

a. Legal opinion on protecting health, if under the S.116 purpose, or
s.116E there is no clause requiring that the Director-General of Health
must consider the safety of fluoridated water, either into human bodies or
the environment.

b. Legal opinion on the authority of the OPMCSA reviews (2014, 2021),
should judicial review take into account the absence of risk assessment
undertaken, with the dilemma that the only claimed scientific opinion are
these OPMCSA reviews where the authors did not include a methodology and
transparent process to review, assess and update the quality of
information relating to the hazard and risk of fluoride. Not limiting such
an assessment to potential IQ loss in young children under 8 years, but
including other risks including dental fluorosis, skeletal fluorosis,
paediatric arthritis and other neurodevelopment and cognitive risks.

c. Legal opinion on the precedent that the OPMCSA reviews potential
establish with regards to an absent to risk assess future medical
treatments in drinking water, the absence of consideration of the full
compound hydroxyfluorosilic acid, and hazardous chemicals that are
released into municipal water and into the environment.

d. Legal opinion on the authority of the recent NTP monograph on cognitive
neurodevelopmental risk to young children exposed to fluoride. Where NTP
toxicological assessments are recognised globally as an authoritative
source of scientifically valid information, and where domestic regulatory
agencies themselves have not conducted such a review.
NTP Monograph on the State of the Science Concerning Fluoride Exposure and
Neurodevelopment and Cognition: A Systematic Review. NTP Monograph 08.
National Toxicology Program Public Health Service U.S. Department of
Health and Human Services.

e. Legal opinion on risks and benefits to health as s116E requires the
Director-General of Health to consider financial cost and savings of
adding fluoride - but does not require the D-G to balance or weight a
claimed reduction in dental caries with potential adverse health outcomes
which may include but is not limited to the following, a reduction in IQ,
dental fluorosis, skeletal fluorosis, paediatric fractures and
osteoarthritis. Legal opinion on whether this s116E does in fact undermine
the purpose of the Health Act as does not appear to require officials to
consider health-based trade-offs.

f. Legal opinion on the dilemma that only fluoride is required to be
added, but it is not medical grade fluoride that is added, but a slurry,
hydroxyfluorosilicic acid.

2. Legal opinion on whether the s116E may contradict or remove the
capacity for officials to take the Local Government Act 2002 into account
as they are acting directly under the orders of the Director-General of
Health?
s125(f)- TA must ‘identify and assess any other public health risks
relating to the drinking water services supplied to the community’

3. Legal opinion on whether the s116E may contradict or remove the
capacity for officials to take the Water Services Act 2021 into account
with respect to the fact that 'other causes' could lead to higher
exposures that might impair the IQ of young children, and harm people on
dialysis machines. s116E may lead to officials setting aside obligations
under Water Services Act s.7(1) orders of the Director-General of Health?:
Water Service Act - s.7 (1) Meaning of safe in relation to drinking water
means drinking water that is unlikely to cause a serious risk of death,
injury or illness,-
Immediately or over time; and/or - whether or not the serious risk is
caused by (ii) other causes together with the consumption or use of
drinking water.

Specifically - legal opinion on whether 'other causes together' may
include:
a. Issue of children having higher urinary fluoride levels than adults.
‘t Mannetje A, Coakley J, Douwes J. (2018) Report of the Biological
Monitoring of Selected Chemicals of Concern. Results of the New Zealand
biological monitoring programme, 2014-2016. Technical Report 2017-1.
March. Centre for Public Health Research (CPHR). Massey University.
Wellington.
b. Toothpaste exposures.
c. History of MAV exceedance, even remote possibility that this might
happen.

And legal opinion on whether precaution should be taken into account under
the Water Services Act (2021) with regards to the potential risk to very
young children.

4. Legal opinion on whether risk assessment, and the requirement that
hazardous substances and medical drugs undergo trials to assess risks to
health by age and bodyweight, using rigorous methods to assess risk to
health by age and bodyweight, are conventions that promote trust in
regulatory decision-making, and whether the Ministry of Health ignoring
such a convention is appropriate in a constitutional monarchy and
parliamentary democracy.

5. Legal opinion the legality of the New Zealand Environmental Protection
Authority failing to conduct risk assessment of fluoride and
hydroxyfluorosilicic acid for 40 years, and also failing to assess
emissions from wastewater treatment plants into receiving environments for
40 years.

Increasing numbers of the New Zealand public are concerned that officials
may not be taking steps to understand the safety of fluoride under the
full extent of their powers, and that a newly added s116 may be
undermining existing responsibilities under different laws, including
acting to undermine the greater purpose of the Health Act (1956), as there
is not capacity in that legislation, and hence no obligation, for
officials to balance competing health-based risks in an appropriate,
scientifically and methodologically rigorous manner.

Yours faithfully,

J Bruning

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Kia ora

 

Thank you for your request for information about Fluoridation of drinking
water.

 

Please find attached our customer response letter.  If you require any
further information please feel free to contact me.

 

 

Ngā mihi nui

 

Angela Hare

Te Hoa Kaipakihi Matua, Pārango Matatapu,Ōkawa anō hoki | Senior Privacy
and Official Information Business Partner
Te Wheako ā-Kirihoko me ngā Ratonga Matihiko | Customer Experience &
Digital Services
Waea | [mobile number]
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