ATTORNEY-GENERAL EX RELATIONE LEWIS AND ANOTHER v. LOWER HUTT CITY
Local government - Municipal corporation - Powers - Fluoridation of Water Supply Whether within powers of corporation - "Pure water" - Meaning - Municipal Corporations Act 1954. S.240
A power to add sodium silico-fluoride to water which is already pure is implicit in the terms of s.240 of the Municipal Corporations Act 1954, and a municipal corporation is thereby empowered to make this addition to the water which it supplies its citizens.
R. v. Fredericton (1956) 2 D.L.R. (2d.) 551 and Village of Forest Hill v. Municipality of Metropolitan Toronto (1957) 9 D.L.R. (2d.) 113, dissented from unless they could be distinguished.
Appeal from the judgement of the Court of Appeal of New Zealand  N.Z.L.R. 438, dismissed.
[words missing from photocopy top of page] judgement of the Supreme Court of New Zealand (McGregor J.) refusing an order restraining the respondent, the corporation of Lower Hutt, from adding sodium silico fluoride to the domestic water supplied by it.
G.P. Burton for the appellant.
The Court of Appeal was in error in holding that s. 240 of the Municipal Corporations Act 1954 applied to enable the respondent corporation to fluoridate the water supply. The section is in Part 17 of the Act, which is headed "Waterworks" and it is the physical construction of works with which the section is concerned - that also appears from the context of s. 240. The fluoridation plant is not a "waterworks", the key to the meaning of which is supplying water which is conveyed through pipes, and the fluoridation plant does not do that and was not installed for that purpose. Nor does it come within the extended meaning of "waterworks" in s.239 of the Act, because there also the key is contained in the last three lines of subs. (1), "for collecting or conveying water for or to the district or any part thereof, or beyond the district".
Section 240 says that the council "may from time to time do all things necessary thereto". The installation of a fluoridation plant and the supply of fluoride is not a thing which is from time to time necessary to the construction of waterworks for the supply of pure water or for the keeping of the same in good repair. Where the water supply is already pure, as has been held here, the fluoridation plant and the fluoride are not necessary for the supply of pure water. They are acts for the purpose of supplying a substance, fluoride, in the consumers' water.
It is open to the respondent to say, granted that this plant is not "waterworks", nevertheless as a reasonable implication from s.240 it is possible for us to add this substance in connection with the supply of pure water.
It was agreed that "pure water" cannot mean chemically pure water. In the context of Part 17, "pure water" means water which is not unpleasant to drink - it must be fit to drink - and secondly, and more important, it must be such that foul or noxious substances which are detrimental to the use to which inhabitants would put it have been eliminated or reduced. Such water has been variously described as potable water or water fit to drink.
The definition of Turner J. in the Court of Appeal  N.Z.L.R 438, 458, is relied on and adopted.
In Village of Forest Hill v. Metropolitan Toronto (1957) 9 D.L.R. (2d.) 113, 117, it was said "…purify it, that is reduce objectionable foreign matter in it by means harmless to its consumers". The meaning here contended for is supported not only by the context in which s.240 appears, but also in the light of various statutory provisions in New Zealand relating to the public water supply.
Section 75 of the Public Health Act 1848 in England was the statutory model for New Zealand municipal corporation legislation, and s. 75 is similar to, and in material aspects identical with, s. 35 of the Waterworks Clauses Act 1847, 26 Halsbury's Statutes of England, 2nd edition 729, which was the statutory basis of the section in New Zealand. Section 35 was considered in Milnes v Huddersfield Corporation (1888) 11 App. Cas. 511. The date of the first New Zealand Municipal Corporations Act is 1867. In 1876, and in several successive Municipal Corporations Acts - and since that date there have been five - the expression "waterworks for the supply of pure water" has been used.
There are other provisions in New Zealand - statutes and regulations - relating to the use of water which reinforce the contention that in using the expression "pure water" the Legislature was looking at freedom from impurities: the Health Act 1956, ss. 39, 40, 42 and 60; the Water Supplies Protection Regulations 1961 (S.R. 1961/86) (made under the Health Act), Regs. 2 and 15; the Underground Water Act 1953, s.4(6) (d) and (e); the Waters Pollution Act 1953, s 16 (2) (h); the Food and Drug Regulations 1946 (S.R. 1946/136) Reg 57. "Pure" means water which does not contain pollution - noxious substances which may be harmful to the consumer - and that is in accordance with the meaning in the Oxford English Dictionary.
If the meaning contended for is applied to the waterworks of the respondent there is evidence that the water before fluoridation was pure water. The respondent has no power to fluoridate its water supply because the addition of fluoride has no effect whatever on the purity of the water in the sense contended for. Its only effect is to increase the fluoride content of the water. So far as purity is concerned, the fluoridation process is entirely neutral.
Alternatively, if the Board rejects the meaning of "pure water" contended for, the reasoning of Turner J. is adopted where he said: "In my opinion water can never be purified, using any reasonable interpretation of that word, by adding to it a substance not there before, simply by way of an additive for the purpose of compulsorily improving the diet of the consumer"; and again: "The plain fact is that the standard prescribed by the Act is 'pure water', and …one cannot increase the purity of water by adding an impurity to it, however beneficial that impurity may be to the diet of the consumer" (ibid., 459).
There is no justification for construing a New Zealand statute by reference to suggested overseas standards of fluoride content. If one may add fluoride, then in principle any other substances may be added so long as it is shown that the substance is to be found in most water supplies in the world. If that conclusion is accepted, the door is open wide to the addition of all kinds of substances - "the door is open to the preparation of synthetic 'water'"; the Forest Hill case (supra).
The tests adopted by the majority of the Court of Appeal should be rejected and that of Turner J. in the Court of Appeal and of McGregor J. in the Supreme Court should be affirmed. It is irrelevant to the respondent's power that such a change is beneficial, Reliance is placed on the judgement in the Ontario Court of Appeal and on the majority judgement of the Supreme Court of Canada in the Forest Hill case (supra) - the overwhelming weight of judicial opinion in Canada was against fluoridation under the Ontario legislation.
The word "wholesome" does not appear in the New Zealand Act, and the reasoning in the Canadian cases is a fortiori applicable to the New Zealand statute.
Reliance is also placed on R. v. Fredericton (1956) 2 D.L.R. (2d.) 551, 563. Although Milnes v. Huddersfield Corporation (supra) is not directly in point here, the implication of that judgment does support the appellant's contention. The addition of fluoride is not something which is necessary to, consequential on, or incidental to any of the express powers conferred by s. 240; nor does it come within any of the implied powers which arise by reasonable and fair implication from the express powers.
The question of the desirability of fluoridation does not arise here; what does arise is the important question whether a local authority in the exercise of its [words missing at top of photocopy page] add fluoride to its water. Parliament has not expressly conferred the power on any person; if the respondent is right, then the power has been conferred on municipalities by a side-wind. The power does not exist, and never has existed, and Parliament must speak in much clearer language than appears in any of the statutory provisions before the exercise of such a power will be recognised as lawful.
R.C. Savage for the respondent corporation.
If there is the power to add the fluoride, it must admittedly be found in ss. 240 or 288 of the Municipal Corporations Act or in s. 23 of the Health Act - it is solely a question of the interpretation of those three sections. The construction of those sections depends largely on the spirit in which one approaches it. There are four principles which appear not to be disputed: (1) The powers to be exercised by a public body should be construed liberally. (2) The powers granted include not only those expressly stated, but also whatever may be regarded as incidental to or consequential on them. (3) Acts done in the exercise of discretionary power will not be interfered with by the Courts if the discretion has been exercised reasonably and bona fide. (4) The sections should be given such large and liberal a construction and interpretation as will best ensure the attainment of the object of the Act according to its true intent and spirit. Further, these are New Zealand Acts and must be construed in the light of conditions current in New Zealand.
On the construction of s. 240 of the Municipal Corporations Act the issue is the very narrow question of what is meant by "pure" in the context in which it is used. All Parliament intended was to lay down a general basic quality when it used that word. It is only having regard to the purpose that one can properly talk of contaminating elements - there must be some criterion to which one ties noxious or contaminating elements. The approach of the majority in the Court of Appeal is right in keeping with the spirit and intention of the legislation, and in conformity with scientific and medical advances. Fluoridation is a matter within the discretion of the particular municipal corporation. On the true construction of s.240, "pure" was not used in any literal sense, but in a general everyday sense. Fluoridated water is "pure water" within the meaning of s. 240.
The particular language of New Zealand Acts should not be interpreted with reference to the interpretation of overseas statutes, but that is a very different thing from saying that New Zealand legislation should not be interpreted as having regard to the standards overseas. There is therefore no inconsistency in relying on evidence which used scientific material culled from experience abroad.
Mr Barton referred to various sections in New Zealand Acts and to the definition of "pollutant" in s.2 of the Municipal Corporations Act; those sections are of no assistance in this case because they are obviously directed to putting in what are polluters.
One of the criteria for determining whether water is suitable for drinking must necessarily be its effect upon health. In the Forest Hill case (supra), so far as it is applicable, the dissenting judgment of the Chief Justice of Canada and of Locke J. are to be preferred. The other Canadian case, R. v. Fredericton (supra), is of no value in determining the present issue because a large part of that case was in whether or not certiorari lay in particular circumstances. On the basis of purifying, it is not permissible to add what are described as impurities; it is clear from the evidence however that water with fluoride in it is pure water.
As to the second issue on s.240 - whether the fluoride plant is a waterworks within the meaning of this section - if it is accepted that fluoridated water is pure water within the meaning of s.240, then the power in that section to construct waterworks for the supply of pure water must necessarily have incidental to it the power to construct any plant that is used for the supply of that water.
[Deals with s.288 of the Municipal Corporations Act and s 23 of the Health Act.]
The general principles of construction put forward by Mr Savage are accepted, the difficulty is their application to the facts of this case. Apart from s.5 (j) of the Acts Interpretation Act 1924, the rules of statutory interpretation in New Zealand are the same as in England. Attorney general ex relatione Hitchens v. Napier City  N.Z.L.R. 991, was decision affecting s. 305 of the Municipal Corporations Act. In a matter relating to the construction of waterworks and the supply of pure water the board is in as good a position as the New Zealand Courts to construe the words of the New Zealand Act. In Ontario there is an Interpretation Act which appears to be identical with s.5 (j) of the New Zealand Act, and in the Court of Appeal in the Forest Hill case (supra), reliance was placed on that provision. That did not deter the Judges from striking down the exercise of the power by the local authority.
There is no question of distinguishing the Forest Hill case; it was held there that there was no power to fluoridate the water supply under the section which required pure and wholesome water to be supplied. "Wholesome" was always used in the sense of free from impurities.
The judgement of their Lordships was delivered by
LORD UPJOHN: Since 1959, the respondent corporation have added to the public water supply which they provide, from artesian wells, for the inhabitants of the city of Lower Hutt a minute quantity of sodium silico fluoride so as to bring the content of fluoride in the water up to one part in a million. The natural content of fluoride in this water is so low as not to be capable of demonstration, but traces of it are definitely there. The reason for this addition is not disputed. The evidence, to which their Lordships will briefly refer, established conclusively that fluoride in water plays a great part in preventing dental caries or decay in teeth, and this is especially so in regard to the teeth of children up to the age of twelve or fourteen. As, for geological reasons, the fluoride in natural water in most parts of New Zealand is very low compared with natural waters in most other parts of the world, this lack of fluoride causes an abnormally high incidence of dental decay among the inhabitants.
The respondent corporation therefore decided to add fluoride to its water solely with a view to improving the dental health of its citizens, especially its children. It has installed a standard fluoridation plant adjacent to the pump room which (as the learned Judge held) ensures that the whole water supply contains an even mixture with the proportion of fluoride to water one part per million, which medical opinion thinks is the optimum proportion for the preservation of dental health. It appears that some other public authorities in New Zealand have done [words missing from photocopy at top of page] of the respondent corporation to do this, but before examining that argument it will be convenient to set out some of the disputed facts.
The phrase must be construed in relation to the background that water in the section refers to a natural liquid obtained from the earth through artesian wells (as in this case) or rivers or streams, and as such it must have within it many substances in solution which it has collected in the course of its percolation through the earth's crust. These substances will differ greatly according to the nature of the earth through which the water passes on its way to the point where it is finally collected by the local authority, be it by artesian well, or from rivers, stream or reservoirs to form the basic supply for the distribution of water to the local inhabitants. But the authority exercising its powers under s. 240 may not be entitled to deliver that water in its natural condition for it may contain many ingredients highly deleterious and harmful to human beings who desire to use it for drinking and domestic purposes. It must supply "pure water". For this purpose therefore it must be empowered to add to the natural water content substances such as chlorine to counter toxic bacilli; to take the necessary steps by the addition or subtraction of constituents, to prevent cloudiness or discolouration, to make the taste more acceptable and "potable", and so on. In the case of the waters supplied by the respondent corporation in fact it appears that the only other addition made to the water besides fluoride is lime to counter some excess of CO2 in the water and possibly trace elements of chlorine to combat bacilli though the evidence on this was far from clear. The learned Judge, however, held on the evidence that the natural water supply of the respondent corporation from its artesian wells was "pure water" and that the water after fluoridation and with the slight percentage of other chemicals added thereto, already mentioned, was still pure water in the sense that it was wholesome water or potable water. He concluded this part of his judgment by saying: "It is no more and no less pure than the natural supply."
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