74 Chapter 5 | JUDICIAL DEVELOPMENT 5.25 In its decision, the Court of Appeal affirmed that the doctrine of native title required the group to be in continuous occupation of the land in dispute. It then quoted with approval its own decision in Kerajaan Negeri Selangor v Sagong Tasi, and held that native title existed but was limited to the area upon which their settlement was found, and did not include the jungles at large where they used to roam to forage for their livelihood in accordance with their tradition. As to the area of settlement and its size, it was a question of fact in each case.223 However, it should be noted that the situation in the two cases are different since the claim in Sagong Tasi is not in foraging lands but in settled areas. 224 5.26 It appeared that the Court of Appeal considered that allowing such a claim would mean that vast areas of land could be under native customary rights simply through assertions by some natives that they and their ancestors had roamed and foraged in the areas. 5.27 After Nor Nyawai, the Federal Court in Madeli bin Salleh (Suing as Administrator of the Estate of Salleh bin Kilong, dcd) v Superintendent of Lands and Surveys, Miri Division & Anor225 reiterated and affirmed the principles established in Nor Nyawai. It reaffirmed that native customary rights were not created by statute but were pre-existing rights under native law and customs. Furthermore, proof of occupation need not necessarily be actual physical occupation. What was needed to be shown was “sufficient measure of control to prevent strangers from interfering”.226 Madeli bin Salleh was a Malay, who claimed NCR over a piece of land in Miri.227 The case went up to the Federal Court, where it was held that the plaintiff established occupation through evidence that he visited the land once a month; he had correspondence with the Government with regard to the land; and there was evidence of planted fruit trees. Merely because the appellant did not live on the disputed land, did not mean that he was no longer in control or did not occupy it. An unduly strict interpretation of the term ‘occupation’ would have the effect of unjustly and automatically depriving those people of their rights. 5.28 Madeli bin Salleh also clearly established that common law, which recognises native customary land rights, has the same effect as written law and comes within the meaning of “existing law” under Article 160(2). Upon acquisition of sovereignty, the Crown and its successors obtained radical title, but not absolute beneficial ownership of land. That radical title is encumbered by native customary rights. 5.29 Further applications of customary laws are illustrated in a few cases after Madeli bin Salleh’s case. Agi Bungkong & Ors v Ladang Sawit Bintulu Sdn Bhd confirmed the court’s recognition of the customary practice of pemakai menoa. Two provisional leases were granted to the defendants and the plaintiffs claimed that their land was within the defendant’s parcel. The High Court followed the Court of Appeal’s decision in Nor Nyawai holding that pemakai menoa was an Iban custom and practice. The fact that it was not codified in the Adat Iban was not an issue as “native title requires an examination of the customs and practices of each individual community and this involves a factual inquiry and not whether the customs 223 Nor Nyawai II [2006] 1 MLJ 256, 269. 224 See Bulan R, “Statutory Recognition of Native Customary Rights under the Sarawak Land Code 1958: Starting at the Right Place”, (2007) JMCL 21 and also Bulan, R with Amy Locklear, supra. 225 [2005] 5 MLJ 305. 226 Following Newcastle City Council v Royal Newcastle Hospital, [1959] 1 All ER 734. 227 For a comprehensive discussion of this case please see, Ramy Bulan (with Amy Locklear), Legal Perspectives on Native customary Rights in Sarawak, 2008, Suhakam Report 2008. chapter 5_a4.indd 74 7/5/13 6:47 PM