The court affirmed that claims regarding native customary rights can be pursued in civil court, recognizing NCR in both common law and public law contexts, and established that limitations are context-sensitive depending on the nature of ongoing claims.

[39] The Court agrees with the submissions of learned counsel for the Plaintiffs that Shaharuddin Ali's case (supra) and the decisions that followed it ruling that NCR claims are public law matters can no longer be applicable after the 2 Court of Appeal decisions of Nor Nyawai (supra) and Madeli Salleh's case (supra) that recognised NCR is also created by common law and are private law matters.

[40] Lord Diplock had drawn this distinction and interplay between private law and public law succinctly in O'Reilly's case (supra) (pg 276C-F):

"It is not, and it could not be, contended that the decision of the board awarding him forfeiture of remission had infringed or threatened to infringe any right of the appellant derived from private law, whether at common law right or one created by a statute. Under the Prison Rules remission of sentence is not a matter of right but of indulgence. So far as private law is concerned all that each appellant had was a legitimate expectation, based upon his knowledge of what is the general practice, that he would be granted the maximum remission, permitted by r 5 (2) of the Prison Rules, of one third of his sentence if by that time no disciplinary award of forfeiture of remission had been made against him. So the second thing to be noted is that none of the appellants had any remedy in private law.

In public law as distinguished from private law, however, such legitimate expectation gave to each appellant a sufficient interest to challenge the legality of the adverse disciplinary award made against him by the board on the ground that in one way or another the board in reaching its decision had acted without the powers conferred upon it by the legislation under which it was acting; and such grounds would include the board's failure to observe the rules of natural justice: which means no more than to act fairly towards him in carrying out their decision-ming process, and I prefer so to put it. "(Emphasis added)

[41] For example, if a native pursuant to s 5 of the Land Code applies for a permit to exercise NCR over it under s 10 of the Land Code, his right is a legitimate expectation that his application will be considered and allowed at the discretion of the Land Office. This legitimate expectation is enforceable by public law remedies but being discretionary is not a right enforceable under private law. The refusal will then become a public law matter, in the form of exhausting the appeals procedure under s 10 (7) of the Land Code ending at the Minister On final refusal, public law empowers him to continue to pursue his legitimate expectations by the O 53 procedure but being discretionary it never gave him a private right to be enforced through a writ in private law. If the permit application is approved then the applicant's rights upon the approval for the permit is enforceable as a private right.

[42] From this distinction, the Court considers that the Plaintiffs' claim to NCR arising from a private right whether given by the Land Code or common law to the natives of Sarawak is a private law matter which is not within the realm of public law. This Court in Merang Jok & 2 Ors v. Government of Malaysia & 5 Ors (Bintulu High Court Suit No: 21-02-2007 (BTU) (unreported) had ruled on the non-applicability of O 53 procedure where a claim is made for NCR as being a private law matter by concluding (pgs 15-16):-

"The Court agrees with learned counsel for the Plaintiffs that the Plaintiffs are trying to establish NCR over the said land through the Court based on common law rights in the manner as stated in the case of Balare Jabu & Ors v. Merawa Sdn Bhd & Ors, [2011] 4 CLJ 751:

[11] "It is now trite law that native customary right is a right recognized in our common law (see Superintendent of Land & Survey Miri Division & Anor v. Madeli Salleh, [2008] 2 MLJ 677, FC). The cases involving native customary rights have ei