Legal Perspectives on the Role of Culture in Sustainable Development

This article introduces some legal perspectives on the role of culture in sustainable development. The authors agree that sustainable development has been designed as an environmental concept but that room exists for the more prominent inclusion of some form(s) of the notion "culture" in the sustainable development equation. It is shown that the fluid nature and meaning of "culture" may require a distinction between the role of "culture" per se and the role of "cultural governance" in the sustainable development context. It is suggested that "cultural governance" as a notion may be more distinct and exact than "culture" itself. The more functional notion of "good cultural governance" is preferred as a benchmark in the sustainable development equation, with the implication that cultural governance occurs in accordance with a certain standard. This standard is briefly considered by looking at the meaning of good cultural governance as a notion that encompasses both cultural governance and good governance generally. The article is set in the South African context but also invokes some law and policy developments internationally, regionally and sub-regionally to depict how issues of culture have been infiltrating the sustainable development discourse and to distil some of the substantive benchmarks for good cultural governance.

Brundtland Report). 3 Sustainable development has accordingly always been widely celebrated as an environmental concept. 4 In South Africa, too, sustainable development has to date been interpreted primarily in the context of environmental law and is understood to embrace economic, social and environmental considerations as implicated by the environment. 5 But, while acknowledging the development of sustainable development as an environmental concept, it is still possible to note some current developments concerning the role of culture in the original sustainable development equation.
If indeed culture has a more prominent role to play in this equation than has been acknowledged to date, there will be implications for public decisionmaking aimed at sustainable development, as in other fields. Brundtland 1987 www.un-documents.net. The Brundtland Commission's Report is annexed to UN A/42/427 and accessible at Brundtland 1987 www.un-documents.net The Commission defines sustainable development as "development that meets the needs of the present without compromising the ability of future generations to meet their own needs". 4 For a brief historical overview of the concept "sustainable development", see Throsby 2008 unesdoc.unesco.org 5 S 1 of the National Environmental Management Act 107 of 1998 (NEMA) defines sustainable development as "the integration of social, economic and environmental factors into planning, implementation and decision-making so as to ensure that development serves present and future generations". Notably, the definition of the environment in the Act does indeed make reference to culture. South Africa's national policy document on sustainable development further sees sustainable development as "enhancing human well-being and quality of life for all time, in particular those most affected by poverty and inequality". See DEAT Framework 2008 www.deat.gov.za 12. 6 UNESCO 1995 unesdoc.unesco.org 7 The text of the Convention can be found under UNESCO 1995 unesdoc.unesco.org issues of culture is also clear from much of the work of the Cultural Sector of UNESCO. 8 Complementary to these international developments one finds that issues of culture increasingly are emerging in international 9 and national 10 case law dealing with legal claims to sustainable development and that more and more scholars from various disciplines are devoting their research to the overlap between issues of culture and the traditional sustainable development equation.
Still, in its definition the Brundtland Commission appears not to have originally intended for issues of culture to be explicitly recognised as an autonomous factor in the above equation. This leaves the onus on us to consider progressive developments in recent legal thinking in order to, inter alia, capacitate the decision-makers responsible for sustainable development.
Assuming, for the time being, that legally relevant links exist between issues of culture and sustainable development, the question arises as to whether or not the existing way in which authorities look at sustainable development suffices to recognise these links in practice. 11 The question is if South African authorities' existing understanding thereof is sufficient to ensure that issues of culture are duly considered in decisions relevant to sustainable development. However, this question seems to presume a clear and universal conception of "culture". It is exactly here that the making of a (practical) case for the inclusion of issues of culture in the sustainable development equation becomes complex. Is it 8 Increased awareness and recognition of cultural diversity can in part be attributed to the "Our Creative Diversity" report compiled by the World Commission for Culture and Development. This commission, founded by UNESCO and the United Nations (UN), commenced its work in 1993. Since the 1950s UNESCO has adopted various trendsetting documents dealing with culture in one way or another. Some of the links between issues of culture and sustainable development are explored in greater detail below.
possibility of drawing such a distinction between "culture" and "cultural governance" in deliberating decisions relevant to sustainable development.
The subsequent discussion shows that "cultural governance" as a notion may be more distinct, exact and functional than "culture" itself. However, as a benchmark in the sustainable development equation "good cultural governance" implies cultural governance of a certain standard, which makes it an even more clearly defined yardstick for authorities to use. This standard is briefly considered by looking at the meaning of good cultural governance as a notion that encompasses both cultural governance and good governance generally.
. The article is set in the South African context but also looks at some law and policy developments internationally, regionally and sub-regionally to depict how issues of culture have been infiltrating the sustainable development discourse and to distil some of the probable substantive benchmarks for good cultural governance.

Pinning down "culture"
The notion of culture remains a much contested concept as a consequence of its many possible multi-layered and context-dependent meanings.  Par 59. 28 The court regards culture as something that "generally relates to traditions and beliefs developed by a community". See par 47. 29 Meaning "a person is a person through other people". See par 53. 30 Par 59. 31 Par 54. The reasoning of O'Regan J, who delivered a minority decision in this judgment, should also be noted. According to her, culture (in ss 30 and 31 of the Constitution) should not be understood in an individualist sense; it "involves associative practices and not individual beliefs". Her finding is based on the wording of a 27 of the United Nations International Covenant on Civil and Political Rights that reads: "In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language". UN International Covenant (date unknown) www.hrweb.org . continue with their attempts to define culture. It falls beyond the scope of this article to discuss the manifold definitions that currently exist or to explore in greater detail the reasons for the difficulty in defining culture generally and in legal terms. However, it may be worthwhile to pause and consider one or two salient views to be found in existing literature. The view has been expressed that culture is a collective term for aesthetical expression by means of literature, theatre, music and sculpture; or ways of living. 32 But it can at the same time be a modality that identifies and binds a specific group of people, or a determining source of identity that draws distinctions between people on the grounds of characteristics such as language, religion, beliefs and traditions. 33 Bennett's 34 view entails that culture bears (at least) two meanings in a legal context. In the first place it means "intellectual or artistic endeavours", and in the second place it refers to peoples' "store of knowledge, beliefs, arts, morals, laws and customs". This view denotes culture as "everything that humans acquire by virtue of being members of a society". In the context of the first meaning of culture as proposed by Bennett, the right to culture implies, for example, the freedom to perform and practice culture in the form of arts and sciences. 35 Such freedom could further be complemented by other rights such as the right to freedom of expression. 36 The second meaning of culture that Bennett proposes seems relevant for African customary law, for instance. 37 32 Hawkes 3; Creative Diversity Report 14. 33 For example, ss 30 and 31 of the Constitution do not refer to culture in general but to "cultural life" and "their culture". 34 Bennett Customary Law 78-79. See also Bennett Human Rights 23-24. 35 An explanatory example of this would be the National Arts Festival held annually in Grahamstown, South Africa. Note, for interest's sake, the politics around cultural activities, and this festival in particular, as discussed by Grundy 1994 African Affairs 387-409. 36 In South Africa, for example, section 16(1)(c) of the Constitution reads: "Everyone has the right to freedom of expression, which includesfreedom of artistic creativity." 37 Bennett Customary Law 78-79. African customary law, as applied in the South African context, is broadly defined as "the customs and usages traditionally observed among the indigenous African peoples of South Africa and which form part of the culture of those The work of Throsby is particularly useful. The author suggests two possible meanings for the term culture. 38 According to the author the term is used in the broad sense in anthropological, sociological or legal frameworks to describe a set of attitudes, beliefs, mores, customs, values and practices which are common to or shared by a group. 39 Such a group may be defined in terms of politics, geography, religion, ethnicity or some other characteristics, making it possible to refer, for example, to African culture, Asian culture, Christian culture, feminist culture, corporate culture and youth culture. The characteristics which define a group may be substantiated in the form of signs, symbols, texts, language, artefacts, oral and written tradition, or by other means. One of the critical functions of these manifestations of a group's culture is to establish, or at least to contribute to establishing, the group's distinctive identity, and thereby to provide a means by which the members of the group can differentiate themselves from members of other groups.
Throsby, 40 however, also defines culture more functionally as denoting certain activities that are undertaken by people, and the products of those activities, which have to do with the intellectual, moral and artistic aspects of human life. 41 Culture, in this sense, relates to activities drawing upon the enlightenment and education of the mind rather than the acquisition of purely technical or vocational skills. When defined in this way the word is more likely to occur as an adjective than as a noun, as in "cultural goods", "cultural institutions" and "cultural governance". Throsby's second definition of culture makes it possible to arrive at some more or less objectively definable characteristics of the cultural activities and goods. These are firstly that the activities concerned involve some form of creativity with the purpose of the production of certain goods; secondly, that they are concerned with the generation and 38 Throsby 3-4. His definitions are not necessarily mutually exclusive and seem to overlap. 39 In Hawkes' language, this particular definition would denote culture as a particular "message". Hawkes 3. 40 Throsby 4. 41 In Hawkes' language, this definition would denote culture as a "medium". Hawkes 3.

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communication of symbolic meaning; and thirdly, that their input embodies, at least partially, some form of intellectual property.
The variety in Throsby's views could help us to describe culture differently in different contexts, including the sustainable development context. Still, the mere fact that Throsby needs to rely on two different approaches in an attempt to define culture demonstrates the difficulty in pinning down a single general meaning for the term. It is evident that the assortment of definitions and views of culture (of which only a few were described above) creates a collage from which it appears virtually impossible to distil a single legally relevant umbrella definition. This fact poses significant challenges to any attempt to establish clearly what the role of culture is or ought to be in the sustainable development context. We return to this point later.
Leaving the attempt to establish meaning of the term culture behind for the moment, the subsequent section explores the ways in which at least some variants of peoples' perception of culture have to date been linked with the notion of sustainable development generally, as well as with each of the original components of sustainable development, namely: the social, economic and environmental.

The role of culture in sustainable development
As was indicated above, the international arena seems to increasingly admit to a role for issues of culture in sustainable development. Some clear examples can be drawn from international treaty law, for instance. It is worth noting the content of articles 12(6) and 13 of the Cultural Diversity Convention, for example. Article 12(6) provides that: Cultural diversity is a rich asset for individuals and societies. The protection, promotion and maintenance of cultural diversity are an essential requirement for sustainable development for the benefit of present and future generations.

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Article 13 of the same Convention provides that: Parties shall endeavour to integrate culture in their development policies at all levels for the creation of conditions conducive to sustainable development and, within this framework, foster aspects relating to the protection and promotion of the diversity of cultural expressions.
The treaty drafters may be lauded for explicitly tying culture to sustainable development "for the benefit of present and future generations". However, whilst laying down ambitious objectives, the treaty seems to assume the existence of a universal understanding of "cultural diversity" and "cultural expressions", an assumption which is not without obvious shortcomings. 42 The limitations implicit in an interpretation of sustainable development confined Culture, therefore, however important it maybe as an instrument of development (or an obstacle to development), cannot ultimately be reduced to a subsidiary position as a mere promoter of (or an impediment to) economic growth. Culture's role is not exhausted as a servant of endsthough in a narrower sense of the concept this is one of its rolesbut is the social basis of the ends themselves. Development and the economy are part of a people's culture.
Cultural economics is furthermore an acknowledged subject field and is widely recognised as having its roots in Galbraith's 1960 publication "The Liberal Hour" and the seminal work "Performing Arts: The Economic Dilemma" by Ultimately, however, it seems necessary for government to commit to so-called "good cultural governance". This point is taken further in 3 below.
The role of culture in sustainable development is destined to remain blurred and indistinct for as long as it is not possible to define culture, generally, or for the sustainable development context specifically. The challenges in this regard were referred to in 2.1 above. But the reader is reminded of Throsby's second, functional view of culture that was described earlier. This view gives rise to the effect that culture does not necessarily lose its meaning when used as an adjective, rather than a noun, as in such phrases as "cultural diversity" or "cultural governance". Therefore, without further evaluating the feasibility of including culture per se as an autonomous factor in the sustainable development equation and following Throsby's thinking, the remainder of this article explores how the role of culture in sustainable development can be 63 Some of these requirements have been identified by Hawkes 27 and Throsby 4. 64 The idea of environmental impact assessment in the traditional sustainable development framework is well established as is indicated by Hawkes 32. However, as is argued by the author, just as there are social, environmental and economic frameworks (or lenses or filters) through which plans are (or should be) evaluated, so there should be a framework for culture. And just as the basic questions being asked by these frameworks are fairly simple, so too would it be with the cultural framework. Typical questions that need to be asked include: What has been the quality of community input into the development of the actual and proposed activities under review? To what extent are these activities reflective of the values and ways of life of the communities upon which they (will) impact? Do these activities improve the capacity of communities to act and interact? understood by looking beyond culture per se and looking instead at cultural governance as a derivative.
Inspired by the generically applicable features of existing definitions of environmental governance, "cultural governance" can be defined as: 65 The management process executed by government and communities to holistically regulate human activities and the effects of these activities on their own and the total cultural environment (including, for example, cultural heritage resources, cultural practices, cultural goods and services, arts and cultural artefacts); by means of formal and informal institutions, processes and mechanisms embedded in and mandated by law, so as to promote the present and future cultural interests of human beings. This management process necessitates a collection of legislative, executive and administrative functions, instruments and ancillary processes that could be used by government, the private sector and citizens to organise and regulate culturally relevant activities within the community as far as products, services, processes, tools and livelihoods are concerned, both in a substantive and procedural sense.
This definition encapsulates several issues of culture as a phenomenon which is flexible enough to include most, if not all, of the culturally relevant considerations that one would like to see addressed in authorities' decisions that are aimed at or relevant to sustainable development. In the absence of a clear understanding and definition of culture per se, it is hence suggested that in the sustainable development equation "cultural governance" be used as a rather wide, yet better defined, determining factor. For cultural governance to be a determinable factor or benchmark in this context, it is proposed further that "good" cultural governance be used as the point of reference. As will be discussed in 3 below, good cultural governance implies an even more distinct and measurable standard with pre-determined internal qualities that authorities 65 For the definitions of environmental governance that the definition of cultural governance is based on, see Nel and Du Plessis "Unpacking Integrated Environmental Management a Step Closer to Effective Cooperative Governance?" SA Public Law 2004 181-190 and Kotzé "Environmental Compliance" 107-108. A narrower definition of cultural governance has been given by Moon 2001 Administration and Society 432-433 as "government's direct or indirect involvement in the promotion and administration of programs of cultural organisations (including museums) existing in specific geographic boundaries with unique financial and administrative arrangements (that is , earmarking a certain percentage of sales or property tax to support cultural institutions and activities." would find particularly useful when weighing up the economic, environmental, social and cultural factors in decisions directed at sustainable development.

Good cultural governance
If one is to argue that good cultural governance must be used as an additional factor in the sustainable development equation, one has to ask what is meant by the phrase. We attend to this question in the subsequent section firstly by considering the now fairly common notion of good governance and secondly by expressing certain viewpoints regarding the link between good governance and culture and the meaning of 'good cultural governance' as such. This part of the discussion is concluded by considering a number of legally relevant global developments and trends in the domain of cultural affairs and the (potential) influence of the latter on good cultural governance in the South African context.

Good governance
Good governance in recent years has fast established itself as a prominent feature of development literature. Good governance was the focus of the Colloquium that this article developed from, and is further widely celebrated as a new approach to the way in which the world, individual countries and local communities are governed.
Generally, governance refers to the management of the relations between government and its populace within a given constitutional order. 66 Governance is a state's government in action, in the context of the relationship between public authorities and the communities that they are responsible for.
Governance collectively embraces the duties of a government "to govern" and generations of people and must, in and by itself, be sustainable. It seems therefore as if good governance has a significant relation to administrative and other processes but that it also has substantive objectives.

Good cultural governance
Flowing from the generic understanding of good governance as described above, the attempt to ascertain the meaning of the phrase good cultural governance entails that one reads into the notion of cultural governance the qualities inherent in good governance. Good cultural governance may therefore be described as cultural governance of a certain measurable standard. Based on the separate definitions of good governance and cultural governance given above, good cultural governance must be a management process based on a combination of legislative, executive and administrative functions, instruments and ancillary processes that meet the generic requirements for good governance. In other words, good cultural governance relates to governance that meets the minimum requirements of good governance generally, albeit in the context of the total cultural environmentwith the latter being understood in the South African context to include, inter alia, cultural heritage resources, cultural practices, cultural goods and services, arts and cultural artefacts.
As was shown earlier, good governance and subsequently, good cultural governance, follows the rule of law. It follows that good cultural governance would as far as possible aim at realising the objectives and at fulfilling the duties for public authorities and others as created by the legal framework applicable to cultural governance. Notably, also, good cultural governance necessitates that government structures are in place to facilitate the fair and equal realisation of the objectives of cultural law, and to duly fulfil the duties imposed by the latter.
One of the aims of this article is to make recommendations directed at public authorities towards the improvement of what would qualify as good cultural governance in the South African context. Apart from the generically applicable qualities of good governance, this requires that the content and scope of the applicable cultural law framework be clear. Several different laws and policies apply directly or indirectly to cultural governance in South Africa. The cultural law framework that is applicable hence comprises of a mix of international, regional, sub-regional and domestic laws and policies. For purposes of this article some of these are discussed below. The discussion is limited to an overview of the objectives of the laws and policies against which different decisions of government could generally be measured.

Global developments and trends and their (potential) influence on good cultural governance in the South African context
It goes without saying that South Africa's domestic cultural policies and legislation are greatly influenced by its being a member of the global community. The country is party to various international, 71 regional 72 and subregional 73 bodies and organisations 74 that make every effort to regulate different issues of culture. 75 We depart from the viewpoint that the objectives of these institutions and instruments cumulatively provide a substantive benchmark for South Africa's achievement of good cultural governance.
The most recent international legal instrument of relevance is the Cultural Diversity Convention. 76 The important link between culture and development is reaffirmed by one of the objectives of the Convention. 77 The objectives of the Convention generally recognise the legitimate role of decision-makers or governments in supporting cultural diversity through cultural policy, and by strengthening international cooperation so as to favour the development of 71 South Africa is, for example, a member of UNESCO, a lead international organisation with the objective of contributing to peace and security by promoting international collaboration through education, science and culture. 72 South Africa is, for example, a member of the African Union (AU) of which the objective, amongst others, is to promote sustainable development in the cultural context. See a 3(j) of the Constitutive Act of the AU, which entered into force in 2001. 73 For example, South Africa is an active member of the Southern African Development Community (SADC), which regards culture as a social phenomenon that plays a vital role in the process of integration and co-operation of the Member States.  The meaning of dynamic values may need clarification to be of use. 85 See a 1 of the Charter. 86 For the text of the Charter, see www.africa-union.org 87 On 12 May 1994, accessible at www.africa-union.org benchmarks to be deduced from some of its objectives and binding duties, the Charter draws direct links between good governance and issues of culture by stating in article 2(6) that one of its objectives is to: Nurture, support and consolidate good governance by promoting democratic culture and practice, building and strengthening governance institutions and inculcating political pluralism and tolerance.
Article 2(8) refers to sustainable development as a further objective. But perhaps article 8 is most relevant, as it makes it abundantly clear that state parties (including South Africa) shall respect ethnic, cultural and religious diversity, which are qualities that contribute to strengthening democracy and citizen participation.
At the sub-regional level, the SADC Protocol on Culture, Information and Sport 88 was signed by the member states, including South Africa, in 2000. This Protocol was concluded in terms of the SADC Treaty 89 to promote regional integration and co-operation, and is guided by four general principles. 90 Two of the principles in the Protocol that may be useful in the identification of substantive benchmark for good cultural governance are, namely: to strive towards the development of policies and programmes in certain areas, for example culture; 91 and to commit to the enhancement of a regional identity in diversity in certain areas, for example culture. 92 In relation to substantive benchmarks of good cultural governance in South Africa, it is further useful to note the objectives of the Protocol. These can be summarised as follows: 93  cooperation in the formulation and harmonisation of cultural policies;  creation of a socio-cultural environment to realise the regional integration ideals of the SADC;  promoting the value of culture in regional development programmes;  identification, promotion and co-ordination of projects in the cultural field, including the exchange of expertise and information between cultures;  ensuring that the significant role culture plays in economic development is recognised;  developing and promoting cultural heritage institutions; and  promoting indigenous languages.
South Africa furthermore has an impressive list of domestic law instruments of which the content forms part of the substantive benchmark for good cultural governance. The aim here is not to critically examine and review the content of all domestic laws and policies dealing with culture, but to give a synoptic overview of the scope and objectives of some of the most prominent laws and policies.
Two pre-constitutional cultural Acts should be fore-grounded. The first is the Culture Promotion Act. 94 The primary aims of the Act are- [t]o provide for the preservation, development, fostering and extension of culture in the Republic by planning, organising, co-ordinating and providing facilities for the utilisation of leisure and for non-formal education; for the development and promotion of cultural relations with other countries; and for the establishment of regional councils for cultural affairs; to confer certain powers upon Ministers in order to achieve those objects; and to provide for matters connected therewith. 95 94 35 of 1983. This Act was assigned to the provinces in terms of Proc R38 in GG 16363 of 13 April 1995 The application thereof has been affected by the provisions of s 20 of the Cultural Affairs Act (House of Assembly) 65 of 1989, which came into operation on 1 March 1991. 95 Italics added.
The second Act is the Cultural Affairs Act, 96 the objectives of which correspond with those of the above Act, namely- [t]o provide for the preservation, fostering and extension of culture by the provision of certain services and facilities; for the establishment of regional councils for cultural affairs; and for determining the objects, powers and functions of such councils; to confer certain powers upon the Minister in order to achieve those objects; and to provide for matters connected therewith. 97 The Cultural Affairs Act deals mainly with the establishment, powers and functions of regional councils, which are expected to "preserve, foster and extend culture in the region for which they are established in accordance with a policy determined by the relevant authority". 98 Whilst the Department of Arts and Culture is currently reviewing all national legislation pertaining to culture (a process which commenced during the apartheid era), the existing legislation remains important for the protection and promotion of culture in South Africa. Its objectives as they relate to the protection and development of different facets of cultural activity arguably still create substantive benchmarks for good cultural governance.
However, the core of the substantive benchmarks for good cultural governance may be encapsulated by the Constitution, which provides that:  Unfair discrimination on the ground of culture is prohibited; 99 The National Heritage Resources Act is often cited and discussed as forming part of the framework of environmental laws in South Africa. Since sustainable development is celebrated as an environmental notion, the inclusion of good cultural governance as a factor in the sustainable development equation may largely be influenced by the aims and objectives of this specific Act. As has already been indicated, the Act defines "heritage resources" as any place or object of cultural significance. It can therefore be deduced that culturally relevant places and objects fall within the purview of its protection. But the Act also defines "living heritage," a phrase which refers to the intangible aspects of inherited culture, which may include cultural tradition, oral history, performance, ritual, popular memory, skills and techniques, indigenous knowledge systems, and the holistic approach to nature, society and social relationships. Section 5 of the Act outlines the principles for the management of heritage resources in South Africa and provides as follows: 1) All authorities, bodies and persons performing functions and exercising powers in terms of this Act for the management of heritage resources must recognise the following principles: (a) Heritage resources have lasting value in their own right and provide evidence of the origins of South African society and as they are valuable, finite, non-renewable and irreplaceable they must be carefully managed to ensure their survival; (b) every generation has a moral responsibility to act as trustee of the national heritage for succeeding generations and the State has an obligation to manage heritage resources in the interests of all South Africans; (c) heritage resources have the capacity to promote reconciliation, understanding and respect, and contribute to the development of a unifying South African identity; and (d) heritage resources management must guard against the use of heritage for sectarian purposes or political gain.
To ensure that heritage resources are effectively managed-(a) the skills and capacities of persons and communities involved in heritage resources management must be developed; and (b) provision must be made for the ongoing education and training of existing and new heritage resources management workers.
Laws, procedures and administrative practices must-(a) be clear and generally available to those affected thereby; (b) in addition to serving as regulatory measures, also provide guidance and information to those affected thereby; and (c) give further content to the fundamental rights set out in the Constitution.
Heritage resources form an important part of the history and beliefs of communities and must be managed in a way that acknowledges the right of affected communities to be consulted and to participate in their management.
Heritage resources contribute significantly to research, education and tourism and they must be developed and presented for these purposes in a way that ensures dignity and respect for cultural values.
Policy, administrative practice and legislation must promote the integration of heritage resources conservation in urban and rural planning and social and economic development.
The identification, assessment and management of the heritage resources of South Africa must- It is argued that an array of practical guidelines and fundamental norms re cultural heritage may be derived from these principles. The latter are particularly useful in the process of distilling substantive benchmarks for good cultural governance in South Africa. Also, the fact that the Cultural Heritage Resources Act has traditionally been categorised alongside environmental laws may to some extent be reminiscent of the fact that up until now a conventional approach to sustainable development has been followed, in which room was explicitly made only for social, cultural and economic considerations. Clearly, however, the aim with the protection of cultural heritage resources and the principles for the management of such resources is ultimately to achieve sustainable development. Whereas significant further research may be required to unpack this idea in full, it is proposed pro tem that the requirements for good governance and the principles for the management of cultural heritage and living heritage be used to establish the bedrock for good cultural governance as an autonomous factor in the sustainable development equation.
However, it is not only enforceable domestic cultural law that serves to create a substantive benchmark for good cultural governance. The White Paper on Arts, Culture and Heritage of 1996 (the White Paper) 116 for example declares its mission to be to "realise the full potential of arts, culture, science and technology in social and economic development, nurture creativity and innovation, and promote the diverse heritage of our nation". 117 Its relevance for good cultural governance is clear: the White Paper realises that governance is one of the main themes of culture which needs to be addressed directly 118 and sets forth various aspirations for the advancement of culture-By addressing seven crucial areas -the provision of infrastructure, human resource development, greater access to public funds to support the creation and dissemination of art, the development of markets and audiences, integration with the RDP, increased funding for the arts, culture and heritage, and securing the rights and status of artists, it will indeed be possible for everyone to freely participate in the cultural life of the community, and to enjoy the arts.  The scarcity of constitutional jurisprudential development.
From the above outline it is evident why inter alia the development of a "cultural framework" may be necessary for good cultural governance in South Africa.
Currently, the substantive benchmarks (which have not been discussed in any detail) are spread across different international, regional, sub-regional and domestic laws and policies. It is proposed that such a framework could even go beyond the content of the instruments that were discussed to include also practical approaches that seem to work for the authorities in charge of cultural governance.
In this regard, South Africa currently follows a so-called "arm's length of the "arm's length approach", when well-implemented and monitored, outweigh the disadvantages and are three-fold: 130  The governance of culture is more likely to be autonomous and transparent;  The use of culture as a political strategy is prevented to a large extent; and  The use of culture as a mechanism of exclusion or a barrier between people is less likely.
It is proposed that an approach such as the "arm's length approach", once tried and tested, should also be included as a substantive benchmark for good cultural governance. In fact, the "arm's length approach" seems to be a clever mechanism to overcome a mere mechanical perception of good cultural governance. It could be used as a tool to ensure that the substantive objectives of cultural law and policy in practice meet the procedural requirements inherent in the notion of good governance.

Conclusion
This article set out to introduce some legal perspectives on the role of cultural issues in decisions directed at sustainable development in the South African context. It was shown that sustainable development was originally conceived as an environmental concept but that room has since, at least in theory, been made for more prominent inclusion of the notion of "culture" in the sustainable development equation. We referred to some of the areas where issues of culture traverse economic, social and environmental considerations in order to show that culture may indeed by closely tied with sustainable development. consider not only the relevant environmental, economic and social factors, but must also attend to culture as an equally important factor.
With reference to some of the existing descriptions of culture in laws, case law and literature, it was contended that the meaning of the term "culture" is particularly fluid and indistinct, and that this poses significant challenges to the possible role of culture in sustainable development. It was shown that it is necessary to draw a distinction between the role of "culture" per se and the role of "cultural governance" in sustainable development discourse. It was also argued that "cultural governance" as a notion may be more distinct and exact than "culture" itself and that it therefore makes sense to use the flexible yet better defined notion of cultural governance for the purposes of the equation under discussion. In order to create a truly measurable standard it was further put forward that the notion of "good cultural governance" be used in the equation. This would mean that in making decisions to promote sustainable development the relevant authorities would have to question not only economic, social and environmental risks and impacts but also the potential risks and impact of a decision on good cultural governance. Since good cultural governance, presupposes compliance with international, regional, sub-regional and domestic cultural law, a brief description was provided of the key instruments and policies that comprise the cultural law framework in South Africa. The objectives of these were briefly indicated to distil the type of targets or substantive benchmarks that the cultural governance endeavors by South African authorities and others should be aimed at.
South Africa has a constitutionally entrenched environmental right that entrenches a legal claim to sustainable development for everyone in the country. Development in the private and public sectors will be bound by the parameters set by sustainable development for a very long time, if not forever. This is necessary to ensure an environment for the people of South Africa that will not be detrimental to health or well-being. In a culturally diverse and vibrant country, where cultural rights are also constitutionally entrenched, it appears inevitable that scholars but especially public authorities reconsider the prominence of the role of issues of culture in sustainable development.
It has been established in this contribution that good cultural governance should be the decision-makers or government's point of reference to ensure that issues of culture are attended to in the sustainable development domain.
This means that the authorities in charge of cultural governance will have to ensure that their houses are in order. They will, for example, have to acquaint themselves with the substantive benchmarks for good cultural governance as contained in cultural law, policy and practice. A cultural impact assessment may have to be designed and implemented that focuses on the issues relevant to sustainable development and that could as far as possible be aligned with environmental and social impact assessments. The latter may require the identification of cultural priority areas, for example. The sphere of government best positioned to take effective legislative and executive control over issues of cultural governance in the sustainable development context may have to be identified albeit without losing sight of the need for cooperative government.
The discussion in this article may have merely introduced the view that a more compelling case be made for the consideration of culture in the sustainable development discourse in South Africa. This suggests that challenges and practical difficulties relevant to the implementation of this approach remain to be further explored by scholars, policy makers and those tasked with cultural governance. We also acknowledge that significant research remains to be done in relation inter alia to the fragmented nature of cultural governance, the division of culturally relevant powers and functions among different organs of state, and the true potential of the so-called "arm's length approach", the implementation and enforcement of cultural law, and the representation of minority groups, whose culture and heritage may be particularly exposed to the risks posed by development within the borders of South Africa. S v Makwanyane 1995 6 BCLR 665 (CC)

Register of Legislation
Broadcasting Act 4 of 1999

Constitution of the Republic of South Africa 1996
Cultural Affairs Act (House of Assembly) 65 of 1989 Cultural Institutions Act 119 of 1998

Culture Promotion Act 35 of 1983
Group Areas Act 41 of 1950